To: | Blake Farms Hard Apple Cider, LLC (tmdocket@cgolaw.com) |
Subject: | U.S. Trademark Application Serial No. 88409968 - SKINNY BERRY - 67651-018TU1 |
Sent: | July 17, 2019 02:33:36 PM |
Sent As: | ecom127@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 Attachment - 19 Attachment - 20 Attachment - 21 |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88409968
Mark: SKINNY BERRY
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Correspondence Address: |
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Applicant: Blake Farms Hard Apple Cider, LLC
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Reference/Docket No. 67651-018TU1
Correspondence Email Address: |
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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: July 17, 2019
The referenced application has been reviewed by the assigned trademark examining attorney. Applicant must respond timely and completely to the issues below. 15 U.S.C. §1062(b); 37 C.F.R. §§2.62(a), 2.65(a); TMEP §§711, 718.03.
SEARCH OF THE 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).
SECTION 2(e)(1) REFUSAL – MERELY DESCRIPTIVE
A mark is merely descriptive if it describes an ingredient, quality, characteristic, function, feature, purpose, or use of an applicant’s goods. TMEP §1209.01(b); see, e.g., In re TriVita, Inc., 783 F.3d 872, 874, 114 USPQ2d 1574, 1575 (Fed. Cir. 2015) (quoting In re Oppedahl & Larson LLP, 373 F.3d 1171, 1173, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004)); In re Steelbuilding.com, 415 F.3d 1293, 1297, 75 USPQ2d 1420, 1421 (Fed. Cir. 2005) (citing Estate of P.D. Beckwith, Inc. v. Comm’r of Patents, 252 U.S. 538, 543 (1920)).
Here, applicant has applied to use the mark “SKINNY BERRY” in conjunction with hard cider in International Class 33. The applied-for mark merely describes the cider as being a cider containing the ingredient berries or berry flavor and lower in fat due to lower calories, alcoholic content, or sugar than other ciders.
The attached evidence from Macmillian Dictionary shows that SKINNY refers to being low in fat. Further, the attached evidence from tbsp. and Peanut Butter & Peppers shows that SKINNY is often used in the context of alcoholic beverages to refer to a low calorie cocktail that is typically lower in sugar content, including a “skinny berry margarita”. Finally, the attached evidence from BJ’s and ACE Cider shows that berry ciders are ciders made from various berries, such as raspberries, blackberries, and other wild berries. Thus, BERRY in the applied-for mark merely refers to an ingredient of the applicant’s cider.
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 do not create a unique, incongruous, or nondescriptive meaning in relation to the goods. Specifically, as mentioned above, SKINNY merely refers to a beverage with low calorie/sugar content/ABV compared to other beverages. BERRY merely refers to an ingredient of the cider, namely, berries. Thus, SKINNY BERRY together merely refers to a berry flavored cider beverage with low calorie/sugar content/ABV compared to other beverages.
In total, the above evidence results in the determination that in relation to the goods, the context thereof, and to someone who knows what the goods are, SKINNY BERRY conveys an immediate idea about a characteristic, ingredient, or quality of the goods. Accordingly, the proposed mark SKINNY BERRY is merely descriptive, and registration is properly refused on the Principal Register under Section 2(e)(1).
Although applicant’s mark has been refused registration, applicant may respond to the refusal by submitting evidence and arguments in support of registration. If applicant responds to the refusal, applicant must also respond to the requirement set forth below.
Advisory: Application Not Eligible for Supplemental Register Until Acceptable Amendment to Allege Use is Filed
REQUEST FOR INFORMATION – RESPONSE REQUIRED
(1) Applicant must respond to the following questions: Will applicant’s good contain berry flavoring or otherwise be made from berries? Will applicant’s cider be low calorie/low on sugar/low on alcoholic content/low fat?
See 37 C.F.R. §2.61(b); TMEP §§814, 1402.01(e).
Failure to comply with a request for information is grounds for refusing registration. In re Harley, 119 USPQ2d 1755, 1757-58 (TTAB 2016); TMEP §814.
GUIDELINES FOR RESPONDING TO THIS OFFICE ACTION
Response guidelines. For this application to proceed, applicant must explicitly address each refusal and/or requirement in this Office action. For a refusal, applicant may provide written arguments and evidence against the refusal, and may have other response options if specified above. For a requirement, applicant should set forth the changes or statements. Please see “Responding to Office Actions” and the informational video “Response to Office Action” for more information and tips on responding.
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
/Luke Cash Browning/
Luke Cash Browning
Trademark Examining Attorney
Law Office 127
(571) 270-5767
Luke.Browning@uspto.gov
RESPONSE GUIDANCE