To: | LESSEREVIL LLC (claire@ziplawpllc.com) |
Subject: | U.S. Trademark Application Serial No. 88396093 - EGG WHITE CURLS - LSEVILT26AUS |
Sent: | February 01, 2020 07:50:12 PM |
Sent As: | ecom109@uspto.gov |
Attachments: | Attachment - 1 Attachment - 2 Attachment - 3 Attachment - 4 Attachment - 5 Attachment - 6 Attachment - 7 |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88396093
Mark: EGG WHITE CURLS
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Correspondence Address:
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Applicant: LESSEREVIL LLC
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Reference/Docket No. LSEVILT26AUS
Correspondence Email Address: |
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NONFINAL 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). A link to the appropriate TEAS response form appears at the end of this Office action.
Issue date: February 01, 2020
This Office action is supplemental to and supersedes the previous Office action issued on June 29, 2019 in connection with this application. Based on information and/or documentation in applicant’s response, the trademark examining attorney now issues the following new refusal(s): Section 2(e)1 refusal. See TMEP §§706, 711.02.
In a previous Office action(s) dated June 29, 2019, the trademark examining attorney refused registration of the applied-for mark based on the following requirement(s): amend the identification of goods and/or services, disclaim descriptive wording in the mark, and request for information.
Based on applicant’s response, the trademark examining attorney notes that the following requirement(s) have been satisfied: identification of goods indefinite, disclaimer requirement, and request for information. See TMEP §713.02.
The following is a SUMMARY OF ISSUES that applicant must address:
• NEW ISSUE: Section 2(e)(1) Merely Descriptive Refusal
Applicant must respond to all issues raised in this Office action within six (6) months of the date of issuance of this Office action. 37 C.F.R. §2.62(a); see TMEP §711.02. If applicant does not respond within this time limit, the application will be abandoned. 37 C.F.R. §2.65(a).
SECTION 2(e)(1) REFUSAL - MERELY DESCRIPTIVE
“Whether consumers could guess what the product [or service] is from consideration of the mark alone is not the test.” In re Am. Greetings Corp., 226 USPQ 365, 366 (TTAB 1985).
In this case, applicant has applied to register the mark “EGG WHITE CURLS” for use in connection with:
“Snack foods prepared with nutrient-rich, Non-GMO ingredients, namely, organic cassava flour based snack foods, cage-free NON- GMO dried egg white based snack foods; Ready to eat snack foods consisting primarily of organic cassava flour, cage-free NON- GMO dried egg whites; Egg white based snack foods” in International Class 29.
In this case, the wording “EGG WHITE” as listed in the identification of goods above, describes an ingredient of the goods and is therefore merely descriptive. TMEP §1209.01(b); see In re TriVita, Inc., 783 F.3d 872, 114 USPQ2d 1574 (Fed. Cir. 2015) (holding NOPALEA merely descriptive of dietary and nutritional supplements containing nopal juice); In re Keebler Co., 479 F.2d 1405, 178 USPQ 155 (C.C.P.A. 1973) (holding RICH ‘N CHIPS merely descriptive of chocolate chip cookies); In re Andes Candies Inc., 478 F.2d 1264, 178 USPQ 156 (C.C.P.A. 1973) (holding CREME DE MENTHE merely descriptive of candy); In re Entenmann’s, Inc., 15 USPQ2d 1750 (TTAB 1990) (holding OATNUT merely descriptive of bread containing oats and hazelnuts); Flowers Indus., Inc. v. Interstate Brands Corp., 5 USPQ 2d 1580 (TTAB 1987) (holding HONEY WHEAT merely descriptive of bread containing honey and wheat). Moreover, applicant has disclaimed the wording “EGG WHITE” in its response, conceding the descriptiveness of the wording. E.g., In re Morinaga Nyugyo Kabushiki Kaisha, 120 USPQ2d 1738, 1745 (TTAB 2016) (quoting Inst. Nat’l des Appellations D’Origine v. Vintners Int’l Co., 958 F.2d 1574, 1581-82, 22 USPQ2d 1190, 1196 (Fed. Cir. 1992)); In re Box Solutions Corp., 79 USPQ2d 1953, 1955 (TTAB 2006).
Furthermore, the wording “EGG WHITE” and “CURLS” are merely descriptive of the above listed goods because the wording “EGG WHITE” and “CURLS” are commonly associated with a feature of snack foods. See evidence addressed below showing common usage of the words “EGG WHITE” and “CURLS” in the marketplace. Additionally, in applicant’s response applicant indicated that “the goods are formed as curls”. See applicant’s response. Therefore, the wording “EGG WHITE” and “CURLS” describe a feature, function, characteristic and/or purpose of applicant’s goods because applicant’s goods are made from egg whites and are shaped as curls. See the following attached evidence:
Only where the combination of descriptive terms creates a unitary mark with a unique, incongruous, or otherwise nondescriptive meaning in relation to the goods and/or services is the combined mark registrable. See In re Colonial Stores, Inc., 394 F.2d 549, 551, 157 USPQ 382, 384 (C.C.P.A. 1968); In re Positec Grp. Ltd., 108 USPQ2d 1161, 1162-63 (TTAB 2013).
In this case, both the individual components and the composite result are descriptive of applicant’s goods and/or services and do not create a unique, incongruous, or nondescriptive meaning in relation to the goods and/or services. Therefore, the wording “EGG WHITE CURLS” fails to create a unique or nondescriptive meaning in relation to the goods and/or services. Thus, the applied-for mark is refused under Section 2(e)(1) of the Trademark Act.
RESPONSE GUIDELINES
Please call or email the assigned trademark examining attorney with questions about this Office action. Although the trademark examining attorney cannot provide legal advice or statements about applicant’s rights, the trademark examining attorney can provide applicant with additional explanation about the refusal(s) and/or requirement(s) in this Office action. See TMEP §§705.02, 709.06. Although the USPTO does not accept emails as responses to Office actions, emails can be used for informal communications and will be included in the application record. See 37 C.F.R. §§2.62(c), 2.191; TMEP §§304.01-.02, 709.04-.05.
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 response to this nonfinal Office action.
/Carolyn Wlodarczyk/
Carolyn Wlodarczyk
Trademark Examining Attorney
Law Office 109
571-272-9273
carolyn.wlodarczyk@uspto.gov
RESPONSE GUIDANCE