UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)
OFFICE ACTION (OFFICIAL LETTER) ABOUT APPLICANT’S TRADEMARK APPLICATION
U.S. APPLICATION SERIAL NO. 88378046
MARK: SWEET CHEEKS
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CORRESPONDENT ADDRESS: |
CLICK HERE TO RESPOND TO THIS LETTER: http://www.gov.uspto.report/trademarks/teas/response_forms.jsp
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APPLICANT: Gale, Macgyver
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CORRESPONDENT’S REFERENCE/DOCKET NO: CORRESPONDENT E-MAIL ADDRESS: |
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OFFICE ACTION
TO AVOID ABANDONMENT OF APPLICANT’S TRADEMARK APPLICATION, THE USPTO MUST RECEIVE APPLICANT’S COMPLETE RESPONSE TO THIS LETTER WITHIN 6 MONTHS OF THE ISSUE/MAILING DATE BELOW. A RESPONSE TRANSMITTED THROUGH THE TRADEMARK ELECTRONIC APPLICATION SYSTEM (TEAS) MUST BE RECEIVED BEFORE MIDNIGHT EASTERN TIME OF THE LAST DAY OF THE RESPONSE PERIOD.
ISSUE/MAILING DATE: 6/26/2019
The referenced application has been reviewed by the assigned trademark examining attorney. Applicant must respond timely and completely to the issue(s) below. 15 U.S.C. §1062(b); 37 C.F.R. §§2.62(a), 2.65(a); TMEP §§711, 718.03.
SEARCH OF OFFICE’S DATABASE OF MARKS
The trademark examining attorney has searched the Office’s database of registered and pending marks and has found no conflicting marks that would bar registration under Trademark Act Section 2(d). TMEP §704.02; see 15 U.S.C. §1052(d).
REFUSAL UNDER TRADEMARK ACT SECTIONS 1, 2, 3, AND 45 – INFORMATIONAL MATTER; NOT CAPABLE
Terms and expressions that merely convey an informational message are not registrable. In re Eagle Crest, Inc., 96 USPQ2d 1227, 1229 (TTAB 2010). Determining whether the term or expression functions as a trademark or service mark depends on how it would be perceived by the relevant public. In re Eagle Crest, Inc., 96 USPQ2d at 1229; In re Aerospace Optics, Inc., 78 USPQ2d 1861, 1862 (TTAB 2006); TMEP §1202.04. “The more commonly a [term or expression] is used, the less likely that the public will use it to identify only one source and the less likely that it will be recognized by purchasers as a trademark [or service mark].” In re Hulting, 107 USPQ2d 1175, 1177 (TTAB 2013) (quoting In re Eagle Crest, Inc., 96 USPQ2d at 1229); TMEP §1202.04(b).
The attached Internet evidence shows that this term or expression is commonly used to refer to a person having attractive physical characteristics or to refer to the attractiveness of particular body parts, sometimes in an offensive manner. See,
This is particularly true with regard to use in connection with underwear and other apparel. Because consumers are accustomed to seeing this term or expression commonly used in everyday speech by many different sources, they would not perceive it as a mark identifying the source of applicant’s goods but rather as only conveying an informational message.
An applicant may not overcome this refusal by amending the application to seek registration on the Supplemental Register or asserting a claim of acquired distinctiveness under Section 2(f). TMEP §1202.04(d); see In re Eagle Crest, Inc., 96 USPQ2d at 1229. Nor will submitting a substitute specimen overcome this refusal. See TMEP §1202.04(d).
Applicant may substitute the following wording (suggestions appear in bold text), if accurate:
“Int. Class 25.
Men’s and women’s underwear, bras, t-shirts, tank tops, shorts, pants, athletic wear, namely, {specify type, e.g., padded shorts}, swim wear, socks.”
For assistance with identifying and classifying goods and services in trademark applications, please see the USPTO’s online searchable U.S. Acceptable Identification of Goods and Services Manual. See TMEP §1402.04.
For attorney referral information, applicant may consult the American Bar Association’s Consumers’ Guide to Legal Help; an online directory of legal professionals, such as FindLaw®; or a local telephone directory. The USPTO, however, may not assist an applicant in the selection of a private attorney. 37 C.F.R. §2.11.
To expedite prosecution of the application, applicant is encouraged to file its response to this Office action online via the Trademark Electronic Application System (TEAS), which is available at http://www.gov.uspto.report/trademarks/teas/index.jsp. If applicant has technical questions about the TEAS response to Office action form, applicant can review the electronic filing tips available online at http://www.gov.uspto.report/trademarks/teas/e_filing_tips.jsp and e-mail technical questions to TEAS@uspto.gov.
TEAS PLUS OR TEAS REDUCED FEE (TEAS RF) APPLICANTS – TO MAINTAIN LOWER FEE, ADDITIONAL REQUIREMENTS MUST BE MET, INCLUDING SUBMITTING DOCUMENTS ONLINE: Applicants who filed their application online using the lower-fee TEAS Plus or TEAS RF application form must (1) file certain documents online using TEAS, including responses to Office actions (see TMEP §§819.02(b), 820.02(b) for a complete list of these documents); (2) maintain a valid e-mail correspondence address; and (3) agree to receive correspondence from the USPTO by e-mail throughout the prosecution of the application. See 37 C.F.R. §§2.22(b), 2.23(b); TMEP §§819, 820. TEAS Plus or TEAS RF applicants who do not meet these requirements must submit an additional processing fee of $125 per class of goods and/or services. 37 C.F.R. §§2.6(a)(1)(v), 2.22(c), 2.23(c); TMEP §§819.04, 820.04. However, in certain situations, TEAS Plus or TEAS RF applicants may respond to an Office action by authorizing an examiner’s amendment by telephone or e-mail without incurring this additional fee.
/Michael Ebaugh/
Examining Attorney
Law Office 108
(571) 270-3341
michael.ebaugh@uspto.gov
TO RESPOND TO THIS LETTER: Go to http://www.gov.uspto.report/trademarks/teas/response_forms.jsp. Please wait 48-72 hours from the issue/mailing date before using the Trademark Electronic Application System (TEAS), to allow for necessary system updates of the application. For technical assistance with online forms, e-mail TEAS@uspto.gov. For questions about the Office action itself, please contact the assigned trademark examining attorney. E-mail communications will not be accepted as responses to Office actions; therefore, do not respond to this Office action by e-mail.
All informal e-mail communications relevant to this application will be placed in the official application record.
WHO MUST SIGN THE RESPONSE: It must be personally signed by an individual applicant or someone with legal authority to bind an applicant (i.e., a corporate officer, a general partner, all joint applicants). If an applicant is represented by an attorney, the attorney must sign the response.
PERIODICALLY CHECK THE STATUS OF THE APPLICATION: To ensure that applicant does not miss crucial deadlines or official notices, check the status of the application every three to four months using the Trademark Status and Document Retrieval (TSDR) system at http://tsdr.gov.uspto.report/. Please keep a copy of the TSDR status screen. If the status shows no change for more than six months, contact the Trademark Assistance Center by e-mail at TrademarkAssistanceCenter@uspto.gov or call 1-800-786-9199. For more information on checking status, see http://www.gov.uspto.report/trademarks/process/status/.
TO UPDATE CORRESPONDENCE/E-MAIL ADDRESS: Use the TEAS form at http://www.gov.uspto.report/trademarks/teas/correspondence.jsp.