To: | Nourish Technology, Inc. (lema@fklawfirm.com) |
Subject: | U.S. Trademark Application Serial No. 88406618 - NOURISH - N/A |
Sent: | August 29, 2019 07:07:24 PM |
Sent As: | ecom103@uspto.gov |
Attachments: |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88406618
Mark: NOURISH
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Correspondence Address: |
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Applicant: Nourish Technology, Inc.
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Reference/Docket No. N/A
Correspondence Email Address: |
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SUSPENSION NOTICE
No Response Required
Issue date: August 29, 2019
This suspension letter is in response to applicant’s communication filed on August 5, 2019.
The application is suspended for the reason(s) specified below. See 37 C.F.R. §2.67; TMEP §§716 et seq.
Application suspended until disposition of cited registration(s). Registration maintenance documents are or were due to be filed for the registration(s), specifically U.S. Registration No. 4367534, cited against applicant in a refusal based on Trademark Act Section 2(d). 15 U.S.C. §1052(d). If the maintenance documents are not timely filed and accepted by the USPTO, the cited registration(s) will cancel and/or expire and will no longer bar registration of applicant’s mark under Section 2(d). See 15 U.S.C. §§1058, 1059, 1141k. Action on this application is suspended for six months to await disposition of the cited registration(s); after which, the trademark examining attorney will determine whether to maintain or withdraw the Section 2(d) refusal. See 37 C.F.R. §2.67; TMEP §716.02(e).
Refusal(s) maintained and continued. The following refusal(s) is maintained and continued:
• Section 2(d) Refusal – Likelihood of Confusion
o The refusal under Trademark Act Section 2(d) is maintained and continued with respect to U.S. Registration Nos. 4367534 and 5788580. In response to the refusal applicant argues that even though the marks are “identical”, the marks have unrelated goods and services targeting different consumers such that consumers at large are not likely to believe applicant’s and registrants’ goods and services come from the same source. In support of its assertions applicant points out that (1) the nature of the goods and services at issue are distinct, and (2) that applicant is a business selling to other businesses, while the registrants are businesses selling directly to consumers.
In this case, the evidence attached to the previous Office action demonstrates that the applied-for goods are the means by which restaurant services, services identified in Reg. No. 4367534, are provided. Furthermore, the previously attached evidence showed restaurants that feature applicant’s goods as part of their services. Additional evidence was provided to demonstrate that restaurants may be operated via a downloadable mobile application, goods identified in Reg. No. 5788580, and that the same entity may provide “Downloadable mobile application for ordering of and payment for takeout food and beverages”, “Industrial robots”, and “Restaurant services, namely, providing...beverages for consumption on and off the premises”.
Consumers are likely to be confused by the use of similar marks on or in connection with goods and with services featuring or related to those goods. TMEP §1207.01(a)(ii); see In re Detroit Athletic Co., 903 F.3d 1297, 1307, 128 USPQ2d 1047, 1051 (Fed. Cir. 2018) (finding retail shops featuring sports team related clothing and apparel related to various clothing items, including athletic uniforms); In re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025 (Fed. Cir. 1988) (finding retail grocery and general merchandise store services related to furniture); In re United Serv. Distribs., Inc., 229 USPQ 237 (TTAB 1986) (finding distributorship services in the field of health and beauty aids related to skin cream); In re Phillips-Van Heusen Corp., 228 USPQ 949 (TTAB 1986) (finding various items of men’s, boys’, girls’ and women’s clothing related to restaurant services and towels); Steelcase Inc. v. Steelcare Inc., 219 USPQ 433 (TTAB 1983) (finding refinishing of furniture, office furniture, and machinery related to office furniture and accessories); Mack Trucks, Inc. v. Huskie Freightways, Inc., 177 USPQ 32 (TTAB 1972) (finding trucking services related to motor trucks and buses).
Moreover, the applied-for mark and the registered marks are identical. Where the marks of the respective parties are identical or virtually identical, as in this case, the degree of similarity or relatedness between the goods and/or services needed to support a finding of likelihood of confusion declines. See In re i.am.symbolic, llc, 116 USPQ2d 1406, 1411 (TTAB 2015) (citing In re Shell Oil Co., 992 F.2d 1204, 1207, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993)), aff’d, 866 F.3d 1315, 123 USPQ2d 1744 (Fed. Cir. 2017); TMEP §1207.01(a).
Accordingly, the trademark examining attorney has found applicant’s arguments unpersuasive and still believes there may be a likelihood of confusion between applicant’s mark and the marks in the cited registrations.
See id. This refusal will be made final once this application is removed from suspension, unless a new issue arises. See TMEP §716.01.
Suspension process. The USPTO will periodically check this application to determine if it should remain suspended. See TMEP §716.04. As needed, the trademark examining attorney will issue a letter to applicant to inquire about the status of the reason for the suspension. TMEP §716.05.
No response required. Applicant may file a response, but is not required to do so.
Chioma (Bata) Oputa
Examining Attorney
Law Office 103
571-272-5234
chioma.oputa@uspto.gov