To: | Mueller Sports Medicine, Inc. (rick.abegglen@muellersportsmed.com) |
Subject: | U.S. Trademark Application Serial No. 88391707 - SELF-ADJUSTING - MSM 2162 |
Sent: | January 16, 2020 04:20:14 PM |
Sent As: | ecom101@uspto.gov |
Attachments: | Attachment - 1 Attachment - 2 Attachment - 3 Attachment - 4 Attachment - 5 Attachment - 6 Attachment - 7 Attachment - 8 Attachment - 9 Attachment - 10 Attachment - 11 Attachment - 12 Attachment - 13 Attachment - 14 Attachment - 15 Attachment - 16 Attachment - 17 Attachment - 18 |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88391707
Mark: SELF-ADJUSTING
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Correspondence Address: |
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Applicant: Mueller Sports Medicine, Inc.
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Reference/Docket No. MSM 2162
Correspondence Email Address: |
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FINAL OFFICE ACTION
The USPTO must receive applicant’s response to this letter within six months of the issue date below or the application will be abandoned. Respond using the Trademark Electronic Application System (TEAS) and/or Electronic System for Trademark Trials and Appeals (ESTTA). A link to the appropriate TEAS response form and/or to ESTTA for an appeal appears at the end of this Office action.
Issue date: January 16, 2020
Responsive to applicant’s communication received December 27, 2019.
Section 2(e)(1) Refusal – Made FINAL
Registration was refused under Section 2(e)(1) of the Trademark Act because the proposed mark immediately conveys a descriptive feature of applicant’s goods. Applicant responded by arguing in support of registration. Applicant’s arguments were considered. They were not found persuasive.
The term “self-adjusting” can also refer to a product, such as a posture correction brace, that allows a user to “self-adjust” the fit of shoulder straps in order to alter the tension or compression. See attached internet evidence, e.g., “freeman orthotics” – “It has a three-pull lace on the side for adjustment, snap button with hook-and-eye for front closure, and removable, self-adjusting shoulder straps”; and “California ECO” – “The ECO is as simple to apply as a backpack or jacket, with easy-to-reach self-adjusting and padded shoulder straps.”
Applicant asserted that there was no evidence in the record to support the refusal. There is now. The attached webpages are considered generally competent sources for determining how the public perceives the mark in connection with an applicant’s goods and/or services. See In re N.C. Lottery, 866 F.3d 1363, 1367-68, 123 USPQ2d 1707, 1709-10 (Fed. Cir. 2017); In re Nett Designs, Inc., 236 F.3d 1339, 1341, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (citing In re Bed & Breakfast Registry, 791 F.2d 157, 160, 229 USPQ 818, 819 (Fed. Cir. 1986)); TMEP §1209.01(b).
The attached evidence shows the proposed mark being used in a clearly descriptive manner for similar posture correction devices.
For the above noted reasons, the term “self-adjusting” would clearly be recognized by potential consumers as describing a significant feature of applicant’s goods and not the goods themselves. As such, the prior refusal to register applicant’s mark under Section 2(e)(1) of the Act is continued and made FINAL.
Response Options
Applicant is encouraged to submit an AAU and convert the application to the Supplemental Register. In the alternative, applicant may elect to file an appeal with the TTAB.
Questions Regarding Office Action
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.
How to respond. Click to file a request for reconsideration of this final Office action that fully resolves all outstanding requirements and refusals and/or click to file a timely appeal to the Trademark Trial and Appeal Board (TTAB) with the required filing fee(s).
/Russ Herman/
Examining Attrorney
Law Office 101
(571)272-9172
russ.herman@uspto.gov
RESPONSE GUIDANCE