To: | Schilling Cider LLC (jchildress@schillingcider.com) |
Subject: | U.S. Trademark Application Serial No. 88421636 - ROSE VACAY - N/A - Request for Reconsideration Denied - No Appeal Filed |
Sent: | November 18, 2019 02:59:22 PM |
Sent As: | ecom125@uspto.gov |
Attachments: |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88421636
Mark: ROSE VACAY
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Correspondence Address: |
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Applicant: Schilling Cider LLC
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Reference/Docket No. N/A
Correspondence Email Address: |
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REQUEST FOR RECONSIDERATION
AFTER FINAL ACTION
DENIED
Issue date: November 18, 2019
Applicant was previously refused registration in International Class 33 because (1) it was a mere drawing or rendering of the applied-for mark, and (2) it did not show use with the applied-for goods. Response options for overcoming that refusal, if any, were set forth in the prior Office action. Applicant, however, responded to such refusal by submitting a substitute specimen for each refused international class that does not show proper use of the applied-for mark in commerce for the reasons immediately stated below. Thus, the refusal to register the applied- for mark in International Class 33 is now made final because applicant failed to provide evidence of use of the mark in commerce. Trademark Act Sections 1 and 45, 15 U.S.C. §§1051, 1127; 37 C.F.R. §§2.34(a)(1)(iv), 2.56(a), 2.63(b); TMEP §§904, 904.07, 1301.04(g)(i).
Moreover, the specimen does not show the mark in the drawing in use in commerce in International Class 33, which is required in the application or amendment to allege use. 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, 904.07(a), 1301.04(g)(i). The mark appearing on the specimen and in the drawing must match; that is, the mark in the drawing “must be a substantially exact representation of the mark” on the specimen. See 37 C.F.R. §2.51(a)-(b); TMEP §807.12(a). In this case, the specimen displays the mark as ROSÉ VACAY . However, the drawing displays the mark as ROSE VACAY . The mark on the specimen does not match the mark in the drawing because the “E” in ROSE contains an accent in the specimen but not in the drawing. Applicant has thus failed to provide the required evidence of use of the mark in commerce. See TMEP §807.12(a).
Accordingly, the following refusal made final in the Office action dated October 3, 2019 is maintained and continued:
• Specimen Refusal
See TMEP §§715.03(a)(ii)(B), 715.04(a).
In addition, the following requirement made final in that Office action is satisfied:
• Disclaimer
See TMEP §§715.03(a)(ii)(B), 715.04(a).
If applicant has already filed an appeal with the Trademark Trial and Appeal Board, the Board will be notified to resume the appeal. See TMEP §715.04(a).
If applicant has not filed an appeal and time remains in the six-month response period, applicant has the remainder of that time to (1) file another request for reconsideration that complies with and/or overcomes any outstanding final requirement(s) and/or refusal(s), and/or (2) file a notice of appeal to the Board. TMEP §715.03(a)(ii)(B). Filing a request for reconsideration does not stay or extend the time for filing an appeal. 37 C.F.R. §2.63(b)(3); see TMEP §715.03(c).
Caroline L. Moran
/Caroline L. Moran/
Trademark Examining Attorney
Law Office 125
(571) 272-3255
caroline.moran@uspto.gov