| Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1957 (Rev 10/2011) |
| OMB No. 0651-0050 (Exp 09/20/2020) |
| Input Field |
Entered |
|---|---|
| SERIAL NUMBER | 88402110 |
| LAW OFFICE ASSIGNED | LAW OFFICE 111 |
| MARK SECTION | |
| MARK FILE NAME | http://uspto.report/TM/88402110/mark.png |
| LITERAL ELEMENT | FOR FLIES PUT FLIES IN A STICKY SITUATION |
| STANDARD CHARACTERS | NO |
| USPTO-GENERATED IMAGE | NO |
| COLOR(S) CLAIMED (If applicable) |
The color(s) gray, blue, green, light green, red and light blue is/are claimed as a feature of the mark. |
| DESCRIPTION OF THE MARK (and Color Location, if applicable) |
The mark consists of a vertically oriented green rectangle that runs the length of the mark from top to bottom. Beginning at the of the green rectangle and extending to the left edge of the mark is an irregular green arch that rises and then falls ending at the far edge of mark approximately one third up from the bottom of the edge. Above the green arch is a gray field with diagonal lines and an irregular square pattern. The words FOR FLIES appears in large type and below those words in smaller type are the words PUT FLIES IN A STICKY SITUATION. Above the words is a stylized image of a fly with red eyes. To the right of the fly image is a circle containing a light green, blue and light blue pixilated pattern. Under the green arch is an partial image of fly trapping device with a blue top and a light green, green, blue and light blue pixilated pattern. To the left is an image of a room with two complete images of a fly trapping device with a blue top and bottom and a light green, green, blue and light blue pixilated pattern, together with other miscellaneous items. The stippling and lining in the mark is claimed as a feature of the mark and does not indicate color. |
| ARGUMENT(S) | |
|
In the Office Action dated May 26, 2019, Applicant responds by (1) addressing the Specimen, (2) addressing the Phantom Advisory, (3) confirming the mark is two-dimensional (4) amending the color claim (5) amending description of the mark, (5) and entering a disclaimer.
Drawing and Specimen The Examining Attorney refused registration on the belief that mark as shown in the drawing does not match the specimen. The Examining Attorney reached this conclusion because the specimen did not include the word TRAPSTIK. Other than the omission of that term, the Examining Attorney did not find any other discrepancy between the mark as presented in the drawing and the mark as it is shown in the specimen.
The Applicant respectfully disagrees with the conclusion of the Examining Attorney. The mere omission of a single term from the drawing should not disqualify an otherwise eligible mark from registration where the specimen otherwise supports use of the mark.
The rules do not require that all elements of mark as used be included in the application drawing where the omitted element is separable for the purpose of registration. Where the element sought to be registered presents a separate and distinct commercial impression apart from any other matter with which the mark is used on the specimen – the element performs a trademark function in and of itself. See, TMEP Section 807.12(d). The rules proved that applicant has some latitude in selecting the mark that it seeks to register. The fact that Applicant has chosen to omit the separable element “TRAPSTIK” does not constitute a mutilation or incomplete representation of the mark.
Applicant has chosen to omit the “TRAPSTIK” element of the mark. The elements that make up the trademark as shown in the drawing and represented by the submitted specimens of use are clearly separable and create their own commercial impression separate and apart the omitted term “TRAPSTIK.”
Applicant respectfully requests that the rejection be withdrawn. Phantom Mark Advisory In light of the foregoing, Applicant respectfully submits that the possible issue of a “phantom mark” is no longer applicable and requests that this advisory be withdrawn. Specimen of Use
Applicant respectfully requests the Examining Attorney reconsider the rejection of the specimen submitted in support of registration of the Applicant’s mark for Applicant’s goods in Class 5.
The Examining Attorney rejected the specimen alleging that the specimen does not show use of the mark with biopesticides.
Applicant responds by stating for the record that Applicant’s goods are considered biopesticides by the U.S. Environmental Protection Agency (EPA) and as such are registered with the EPA. Biopesticide products are regulated by the EPA and require EPA approval before they may be sold to the public. As claimed in the application, Applicant’s goods include biopesticides for domestic use. Applicant’s goods are an insect trap as the Examining Attorney notes. However, because of the attractant in combination with the trap device the Applicant registered, as required, the subject goods with the EPA as a pesticide product. See the attached information from the EPA website, including applicable CFR regulations and the information on regulation and definitions of pesticides from the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). See, Section 152.500(a), which defines a device subject to registration as any product designed to “mitigate any pest [insect].”
Applicant submits that the specimen submitted shows use of the mark for goods in International Class 5 and respectfully requests that the rejection be withdrawn. The Mark is Two-Dimensional The mark applied for is a two-dimensional design of a product label shown flat that will be used as product packaging. The mark description has been amended accordingly as shown in the Description of the Mark.
Description of the Mark
Applicant amends the application to include the description of the Mark required by the examining attorney.
The mark consists of two-dimensional packaging. A vertically oriented green rectangle runs the length of the right side of the mark from top to bottom. Beginning at the bottom of the green rectangle and extending to the left edge of the Mark is an irregular green arch that rises and falls ending at the far edge of the mark approximately one third up from the bottom of the edge. Above the green arch is a gray and white field with diagonal lines and an irregular square pattern. The words FOR FLIES appear in black in large type and below those words in smaller type are the words put flies in a STICKY SITUATION in black. Above the words is a stylized image of a fly in black and white with red eyes. To the right of the fly image is a circle containing a light green, blue and light blue pixilated pattern. Under the green arch is a partial image of fly trapping device with a blue top and a light green, green, blue and light blue pixilated pattern. To the left is an image of a room in black, white, and gray, and a light green folded chair, with two complete images of a fly trapping device with a blue top and bottom and a light green, green, blue and light blue pixilated pattern, together with other miscellaneous items.
Color Claim
Applicant amends the application to include the following color claim:
“The colors gray, blue, green, light green, red, light blue, black and white are claimed as a feature of the mark.”
Applicant has amended the application in accordance with the requirement and suggestions of the Examining Attorney.
Disclaimer
Applicant enters the following disclaimer as required by the Examining Attorney.
No claim is made to the exclusive right to use “FOR FLIES” apart from the mark as shown
Conclusion The Applicant has addressed and rectified all of the issues raised in the Office Action and respectfully requests that the Examining Attorney withdraw the rejection and approve the mark for publication. If the Examining Attorney has any remaining questions, please contact the attorney of record. |
|
| EVIDENCE SECTION | |
| EVIDENCE FILE NAME(S) | |
| ORIGINAL PDF FILE | evi_502391710-20190614183818946205_._59055_eCFR___Code_of_Federal_Regulations.pdf |
| CONVERTED PDF FILE(S) (1 page) |
\\TICRS\EXPORT17\IMAGEOUT17\884\021\88402110\xml5\ROA0002.JPG |
| ORIGINAL PDF FILE | evi_502391710-20190614183818946205_._59055_EPA_Evidence.pdf |
| CONVERTED PDF FILE(S) (5 pages) |
\\TICRS\EXPORT17\IMAGEOUT17\884\021\88402110\xml5\ROA0003.JPG |
| \\TICRS\EXPORT17\IMAGEOUT17\884\021\88402110\xml5\ROA0004.JPG | |
| \\TICRS\EXPORT17\IMAGEOUT17\884\021\88402110\xml5\ROA0005.JPG | |
| \\TICRS\EXPORT17\IMAGEOUT17\884\021\88402110\xml5\ROA0006.JPG | |
| \\TICRS\EXPORT17\IMAGEOUT17\884\021\88402110\xml5\ROA0007.JPG | |
| ORIGINAL PDF FILE | evi_502391710-20190614183818946205_._cide__Fungicide__and_Rodenticide_Act__FIFRA__and_Federal__1_.pdf |
| CONVERTED PDF FILE(S) (11 pages) |
\\TICRS\EXPORT17\IMAGEOUT17\884\021\88402110\xml5\ROA0008.JPG |
| \\TICRS\EXPORT17\IMAGEOUT17\884\021\88402110\xml5\ROA0009.JPG | |
| \\TICRS\EXPORT17\IMAGEOUT17\884\021\88402110\xml5\ROA0010.JPG | |
| \\TICRS\EXPORT17\IMAGEOUT17\884\021\88402110\xml5\ROA0011.JPG | |
| \\TICRS\EXPORT17\IMAGEOUT17\884\021\88402110\xml5\ROA0012.JPG | |
| \\TICRS\EXPORT17\IMAGEOUT17\884\021\88402110\xml5\ROA0013.JPG | |
| \\TICRS\EXPORT17\IMAGEOUT17\884\021\88402110\xml5\ROA0014.JPG | |
| \\TICRS\EXPORT17\IMAGEOUT17\884\021\88402110\xml5\ROA0015.JPG | |
| \\TICRS\EXPORT17\IMAGEOUT17\884\021\88402110\xml5\ROA0016.JPG | |
| \\TICRS\EXPORT17\IMAGEOUT17\884\021\88402110\xml5\ROA0017.JPG | |
| \\TICRS\EXPORT17\IMAGEOUT17\884\021\88402110\xml5\ROA0018.JPG | |
| DESCRIPTION OF EVIDENCE FILE | EPA Evidence to support the Class 5 goods in the application |
| ADDITIONAL STATEMENTS SECTION | |
| DISCLAIMER | No claim is made to the exclusive right to use FOR FLIES apart from the mark as shown. |
| COLOR(S) CLAIMED (If applicable) |
The color(s) gray, blue, green, light green, red, light blue, black and white is/are claimed as a feature of the mark. |
| DESCRIPTION OF THE MARK (and Color Location, if applicable) |
The mark consists of two-dimensional packaging. A vertically oriented green rectangle runs the length of the right side of the mark from top to bottom. Beginning at the bottom of the green rectangle and extending to the left edge of the mark is an irregular green arch that rises and falls ending at the far edge of the mark approximately one third up from the bottom of the edge. Above the green arch is a gray and white field with diagonal lines and an irregular square pattern. The words FOR FLIES appear in black in large type and below those words in smaller type are the words put flies in a STICKY SITUATION in black. Above the words is a stylized image of a fly in black and white with red eyes. To the right of the fly image is a circle containing a light green, blue and light blue pixilated pattern. Under the green arch is a partial image of fly trapping device with a blue top and a light green, green, blue and light blue pixilated pattern. To the left is an image of a room in black, white, and gray, and a light green folded chair, with two complete images of a fly trapping device with a blue top and bottom and a light green, green, blue and light blue pixilated pattern, together with other miscellaneous items. |
| SIGNATURE SECTION | |
| RESPONSE SIGNATURE | /Everett E. Fruehling/ |
| SIGNATORY'S NAME | Everett E. Fruehling |
| SIGNATORY'S POSITION | Attorney of Record, Washington State bar member |
| SIGNATORY'S PHONE NUMBER | 206.695.1743 |
| DATE SIGNED | 06/14/2019 |
| AUTHORIZED SIGNATORY | YES |
| FILING INFORMATION SECTION | |
| SUBMIT DATE | Fri Jun 14 19:18:01 EDT 2019 |
| TEAS STAMP | USPTO/ROA-XX.XXX.XX.XX-20 190614191801409291-884021 10-620bbd78861e81982f7da7 4ee65c2b59e117cfafc4a559f d2b5fefc147d9dc366ce-N/A- N/A-20190614183818946205 |
| Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1957 (Rev 10/2011) |
| OMB No. 0651-0050 (Exp 09/20/2020) |
In the Office Action dated May 26, 2019, Applicant responds by (1) addressing the Specimen, (2) addressing the Phantom Advisory, (3) confirming the mark is two-dimensional (4) amending the color claim (5) amending description of the mark, (5) and entering a disclaimer.
Drawing and Specimen
The Examining Attorney refused registration on the belief that mark as shown in the drawing does not match the specimen. The Examining Attorney reached this conclusion because the specimen did not include the word TRAPSTIK. Other than the omission of that term, the Examining Attorney did not find any other discrepancy between the mark as presented in the drawing and the mark as it is shown in the specimen.
The Applicant respectfully disagrees with the conclusion of the Examining Attorney. The mere omission of a single term from the drawing should not disqualify an otherwise eligible mark from registration where the specimen otherwise supports use of the mark.
The rules do not require that all elements of mark as used be included in the application drawing where the omitted element is separable for the purpose of registration. Where the element sought to be registered presents a separate and distinct commercial impression apart from any other matter with which the mark is used on the specimen – the element performs a trademark function in and of itself. See, TMEP Section 807.12(d). The rules proved that applicant has some latitude in selecting the mark that it seeks to register. The fact that Applicant has chosen to omit the separable element “TRAPSTIK” does not constitute a mutilation or incomplete representation of the mark.
Applicant has chosen to omit the “TRAPSTIK” element of the mark. The elements that make up the trademark as shown in the drawing and represented by the submitted specimens of use are clearly separable and create their own commercial impression separate and apart the omitted term “TRAPSTIK.”
Applicant respectfully requests that the rejection be withdrawn.
Phantom Mark Advisory
In light of the foregoing, Applicant respectfully submits that the possible issue of a “phantom mark” is no longer applicable and requests that this advisory be withdrawn.
Specimen of Use
Applicant respectfully requests the Examining Attorney reconsider the rejection of the specimen submitted in support of registration of the Applicant’s mark for Applicant’s goods in Class 5.
The Examining Attorney rejected the specimen alleging that the specimen does not show use of the mark with biopesticides.
Applicant responds by stating for the record that Applicant’s goods are considered biopesticides by the U.S. Environmental Protection Agency (EPA) and as such are registered with the EPA. Biopesticide products are regulated by the EPA and require EPA approval before they may be sold to the public. As claimed in the application, Applicant’s goods include biopesticides for domestic use. Applicant’s goods are an insect trap as the Examining Attorney notes. However, because of the attractant in combination with the trap device the Applicant registered, as required, the subject goods with the EPA as a pesticide product. See the attached information from the EPA website, including applicable CFR regulations and the information on regulation and definitions of pesticides from the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). See, Section 152.500(a), which defines a device subject to registration as any product designed to “mitigate any pest [insect].”
Applicant submits that the specimen submitted shows use of the mark for goods in International Class 5 and respectfully requests that the rejection be withdrawn.
The Mark is Two-Dimensional
The mark applied for is a two-dimensional design of a product label shown flat that will be used as product packaging. The mark description has been amended accordingly as shown in the Description of the Mark.
Description of the Mark
Applicant amends the application to include the description of the Mark required by the examining attorney.
The mark consists of two-dimensional packaging. A vertically oriented green rectangle runs the length of the right side of the mark from top to bottom. Beginning at the bottom of the green rectangle and extending to the left edge of the Mark is an irregular green arch that rises and falls ending at the far edge of the mark approximately one third up from the bottom of the edge. Above the green arch is a gray and white field with diagonal lines and an irregular square pattern. The words FOR FLIES appear in black in large type and below those words in smaller type are the words put flies in a STICKY SITUATION in black. Above the words is a stylized image of a fly in black and white with red eyes. To the right of the fly image is a circle containing a light green, blue and light blue pixilated pattern. Under the green arch is a partial image of fly trapping device with a blue top and a light green, green, blue and light blue pixilated pattern. To the left is an image of a room in black, white, and gray, and a light green folded chair, with two complete images of a fly trapping device with a blue top and bottom and a light green, green, blue and light blue pixilated pattern, together with other miscellaneous items.
Color Claim
Applicant amends the application to include the following color claim:
“The colors gray, blue, green, light green, red, light blue, black and white are claimed as a feature of the mark.”
Applicant has amended the application in accordance with the requirement and suggestions of the Examining Attorney.
Disclaimer
Applicant enters the following disclaimer as required by the Examining Attorney.
No claim is made to the exclusive right to use “FOR FLIES” apart from the mark as shown
Conclusion
The Applicant has addressed and rectified all of the issues raised in the Office Action and respectfully requests that the Examining Attorney withdraw the rejection and approve the mark for publication. If the Examining Attorney has any remaining questions, please contact the attorney of record.
