To: | Nutrient Foods, LLC (dave@dingmaniplaw.com) |
Subject: | U.S. Trademark Application Serial No. 88411042 - LIQUID NUTRIENT - 24278-00130 |
Sent: | May 01, 2020 04:03:40 PM |
Sent As: | ecom116@uspto.gov |
Attachments: |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88411042
Mark: LIQUID NUTRIENT
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Correspondence Address: |
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Applicant: Nutrient Foods, LLC
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Reference/Docket No. 24278-00130
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: May 01, 2020
In an office action of February 5, 2020, a refusal under Section 2(e)(1) of the Trademark Act was made final. The amendment to the Supplemental Register and disclaimer submitted with the request for reconsideration filed on April 9, 2020, obviates this refusal. However, the specimen of use submitted with the amendment to allege use of April 9, 2020, is not acceptable for the reason set forth below.
SPECIMEN OF USE REQUIREMENT
Webpage specimen does not include required date accessed. Registration is refused because the specimen is not acceptable as a webpage specimen; it lacks the required date accessed. See 37 C.F.R. §2.56(c); Mandatory Electronic Filing & Specimen Requirements, Examination Guide 1-20, at V.B. (Rev. Feb. 2020). The specimen thus appears to be in the nature of a digital mockup that fails to show the applied-for mark in actual use in commerce. See Trademark Act Sections 1 and 45, 15 U.S.C. §§1051, 1127; 37 C.F.R. §§2.34(a)(1)(iv), 2.56(a); TMEP §§904, 904.03(g), 904.07(a). An application based on Trademark Act Section 1(a) must include a specimen showing the applied-for mark as actually used in commerce for each international class of goods and services identified in the application or amendment to allege use. 15 U.S.C. §1051(a)(1); 37 C.F.R. §§2.34(a)(1)(iv), 2.56(a); TMEP §§904, 904.07(a).
A webpage submitted as a specimen must include the URL and access or print date to show actual use in commerce. 37 C.F.R. §2.56(c). Because the webpage specimen lacks the associated URL and/or access or print date on it, within the TEAS form used to submit the specimen, or in a verified statement in a later-filed response, it is unacceptable to show use of the mark in commerce.
Examples of specimens. Specimens for goods include a photograph of (1) the actual goods bearing the mark; (2) an actual container, packaging, tag or label for the goods bearing the mark; or (3) a point-of-sale display showing the mark directly associated with the goods. See 37 C.F.R. §2.56(b)(1), (c); TMEP §904.03(a)-(m). A webpage specimen submitted as a display associated with the goods must show the mark in association with a picture or textual description of the goods and include information necessary for ordering the goods. TMEP §904.03(i); see 37 C.F.R. §2.56(b)(1), (c).
Response options. Applicant may respond to this refusal by satisfying one of the following for each applicable international class:
(1) Submit a verified statement, in a signed affidavit or supported by a declaration under 37 C.F.R. §2.20 or 28 U.S.C. §1746, specifying the URL of the original webpage specimen and the date it was accessed or printed.
(2) Submit a different specimen (a verified “substitute” specimen), including the URL and date accessed/printed on it, that (a) was in actual use in commerce at least as early as the filing date of the application or prior to the filing of an amendment to allege use and (b) shows the mark in actual use in commerce for the goods and/or services identified in the application or amendment to allege use. Applicant must also submit the following statement made in a signed affidavit or supported by a declaration under 37 C.F.R. §2.20: “The substitute (or new, or originally submitted, if appropriate) specimen(s) was/were in use in commerce at least as early as the filing date of the application or prior to the filing of the amendment to allege use.”
(3) Amend the filing basis to intent to use under Section 1(b) (which includes withdrawing an amendment to allege use, if one was filed), as no specimen is required before publication. This option will later necessitate additional fee(s) and filing requirements, including a specimen.
For an overview of the response options referenced above and instructions on how to satisfy these options using the online Trademark Electronic Application System (TEAS) form, see the Specimen webpage.
How to respond. Click to file a response to this nonfinal Office action.
/Khanh M. Le/
Trademark Examining Attorney
Law Office 116
U.S. Patent & Trademark Office
Khanh.Le@USPTO.gov
(571) 272-9435
RESPONSE GUIDANCE