United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
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U.S. Application Serial No. 88424731
Mark: RED DEVIL
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Correspondence Address: |
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Applicant: TUL CORPORATION
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Reference/Docket No. 2846/1671TUS
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: August 02, 2019
· Section 2d Refusal-Likelihood of Confusion
· Specimen Refusal-Class 35
· Identification of Goods and Services
· Mark Description
SECTION 2(d) REFUSAL – LIKELIHOOD OF CONFUSION
Registrant’s mark for Reg. No. 5010657, “DEVIL” is for “Computer hardware; Computers; Computers and computer hardware; Supercomputers” in International Class 9.
Registrant’s mark for Reg. No. 5714661, “RED DEVIL” is for “Toy robots; Controllers for game consoles; Gyroscopes and flight stabilizers for model aircraft; Remote-controlled toy vehicles; Toy building blocks; Toy drones” in International Class 28.
Standard of Analysis for 2(d) Refusal
Trademark Act Section 2(d) bars registration of an applied-for mark that is so similar to a registered mark that it is likely consumers would be confused, mistaken, or deceived as to the commercial source of the goods and/or services of the parties. See 15 U.S.C. §1052(d). Likelihood of confusion is determined on a case-by-case basis by applying the factors set forth in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 1361, 177 USPQ 563, 567 (C.C.P.A. 1973) (called the “du Pont factors”). In re i.am.symbolic, llc, 866 F.3d 1315, 1322, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017). Only those factors that are “relevant and of record” need be considered. M2 Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 1382, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006) (citing Shen Mfg. Co. v. Ritz Hotel Ltd., 393 F.3d 1238, 1241, 73 USPQ2d 1350, 1353 (Fed. Cir. 2004)); see In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1744 (TTAB 2018).
Although not all du Pont factors may be relevant, there are generally two key considerations in any likelihood of confusion analysis: (1) the similarities between the compared marks and (2) the relatedness of the compared goods and/or services. See In re i.am.symbolic, llc, 866 F.3d at 1322, 123 USPQ2d at 1747 (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1164-65, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)); Federated Foods, Inc. v. Fort Howard Paper Co.,544 F.2d 1098, 1103, 192 USPQ 24, 29 (C.C.P.A. 1976) (“The fundamental inquiry mandated by [Section] 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods [or services] and differences in the marks.”); TMEP §1207.01.
Similarity of the Marks
Marks are compared in their entireties for similarities in appearance, sound, connotation, and commercial impression. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 1321, 110 USPQ2d 1157, 1160 (Fed. Cir. 2014) (quoting Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 1371, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005)); TMEP §1207.01(b)-(b)(v). “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018) (citing In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)); TMEP §1207.01(b).
When comparing marks, “[t]he proper test is not a side-by-side comparison of the marks, but instead whether the marks are sufficiently similar in terms of their commercial impression such that [consumers] who encounter the marks would be likely to assume a connection between the parties.” Cai v. Diamond Hong, Inc., __ F.3d __, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018) (quoting Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1368, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012)); TMEP §1207.01(b). The proper focus is on the recollection of the average purchaser, who retains a general rather than specific impression of trademarks. In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018) (citing In re St. Helena Hosp., 774 F.3d 747, 750-51, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014); Geigy Chem. Corp. v. Atlas Chem. Indus., Inc., 438 F.2d 1005, 1007, 169 USPQ 39, 40 (CCPA 1971)); TMEP §1207.01(b).
Marks must be compared in their entireties and should not be dissected; however, a trademark examining attorney may weigh the individual components of a mark to determine its overall commercial impression. In re Detroit Athletic Co., 903 F.3d 1297, 1305, 128 USPQ2d 1047, 1050 (Fed. Cir. 2018) (“[Regarding the issue of confusion,] there is nothing improper in stating that . . . more or less weight has been given to a particular feature of a mark, provided the ultimate conclusion rests on consideration of the marks in their entireties.” (quoting In re Nat’l Data Corp., 753 F.2d 1056, 1058, 224 USPQ 749, 751 (Fed. Cir. 1985)).
In this case, applicant’s mark is composed of stylized lettering and a slight design of the letter “V”. When evaluating a composite mark consisting of words and a design, the word portion is normally accorded greater weight because it is likely to make a greater impression upon purchasers, be remembered by them, and be used by them to refer to or request the goods and/or services. In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1184 (TTAB 2018) (citing In re Viterra Inc., 671 F.3d 1358, 1362, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012)); TMEP §1207.01(c)(ii). Thus, although marks must be compared in their entireties, the word portion is often considered the dominant feature and is accorded greater weight in determining whether marks are confusingly similar, even where the word portion has been disclaimed. In re Viterra Inc., 671 F.3d at 1366-67, 101 USPQ2d at 1911 (citing Giant Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 1570-71, 218 USPQ2d 390, 395 (Fed. Cir. 1983)).
In regards to Reg. No. 5714661, applicant’s mark and registrant’s mark share identical wording. As mentioned above, the fact that the designs are different does not obviate likelihood of confusion since the word portion of the marks are considered the dominant portions. The designs also both evoke pictorial representations of the word “devil” and thus are not so distinct from each other. These marks are also identical in sound and meaning, “and have the potential to be used . . . in exactly the same manner.” In re i.am.symbolic, llc, 116 USPQ2d 1406, 1411 (TTAB 2015), aff’d, 866 F.3d 1315, 123 USPQ2d 1744 (Fed. Cir. 2017). Additionally, because the word portions are identical, and the designs are so similar, these marks are likely to engender the same connotation and overall commercial impression when considered in connection with applicant’s and registrant’s respective goods and/or services. Id. Therefore, the marks are confusingly similar.
Further, even if potential purchasers realize the apparent differences between the marks, they could still reasonably assume, due to the overall similarities in sound, appearance, connotation, and commercial impression in the respective marks, that applicant's goods and services sold under the “RED DEVIL” mark constitute a new or additional product line from the same source as the goods sold under the registered “RED DEVIL” mark with which they are acquainted or familiar, and that applicant’s mark is merely a variation of the registrant’s mark. See, e.g., SMS, Inc. v. Byn-Mar Inc. 228 USPQ 219, 220 (TTAB 1985) (applicant’s marks ALSO ANDREA and ANDREA SPORT were “likely to evoke an association by consumers with opposer's preexisting mark [ANDREA SIMONE] for its established line of clothing.”).”
In regards to the additional wording in applicant’s mark when compared to Reg. No. 5010657, in this case, “RED”, adding a term to a registered mark generally does not obviate the similarity between the compared marks, nor does it overcome a likelihood of confusion under Section 2(d). See Coca-Cola Bottling Co. v. Jos. E. Seagram & Sons, Inc., 526 F.2d 556, 557, 188 USPQ 105, 106 (C.C.P.A. 1975) (finding BENGAL and BENGAL LANCER and design confusingly similar); In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1269 (TTAB 2009) (finding TITAN and VANTAGE TITAN confusingly similar); In re El Torito Rests., Inc., 9 USPQ2d 2002, 2004 (TTAB 1988) (finding MACHO and MACHO COMBOS confusingly similar); TMEP §1207.01(b)(iii). In the present case, these marks are identical in part.
Furthermore, where the goods of an applicant and registrant are identical or virtually identical, the degree of similarity between the marks required to support a finding that confusion is likely declines. See Cai v. Diamond Hong, Inc., __ F.3d __, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018) (quoting In re Viterra Inc., 671 F.3d 1358, 1363, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012)); TMEP §1207.01(b).
Accordingly, in this case, the mark “RED DEVIL” offers the same commercial impression as the registered “DEVIL” and “RED DEVIL” marks. For this reason, the marks are confusingly similar.
Similarity of the Goods and Services
In this case, the goods in the application and both registrations are partially identical. Therefore, it is presumed that the channels of trade and classes of purchasers are the same for these goods. See Cai v. Diamond Hong, Inc., __ F.3d __, 27 USPQ2d 1797, 1801 (Fed. Cir. 2018) (quoting In re Viterra Inc., 671 F.3d 1358, 1362, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012)).
Additionally, in relation to applicant’s computer hardware products, registrant for Reg. No. 5010657 uses broad wording to describe its goods simply as “computer hardware”, which presumably encompasses all goods of the type described, including applicant’s more narrow “data processing apparatus; computer memory devices; Computer storage devices, namely, high-speed storage subsystems for storage and backup of electronic data either locally or via a telecommunications network; acoustic and electric couplers; Computer central processing units; Optical character readers; interfaces for computers; integrated circuit cards / smart cards; memory cards for video game machines; graphics card; Electronic chips for the manufacture of integrated circuits; integrated circuits. See, e.g., In re Solid State Design Inc., 125 USPQ2d 1409, 1412-15 (TTAB 2018); Sw. Mgmt., Inc. v. Ocinomled, Ltd., 115 USPQ2d 1007, 1025 (TTAB 2015). Thus, applicant’s and registrant’s goods are legally identical. See, e.g., In re i.am.symbolic, llc, 127 USPQ2d 1627, 1629 (TTAB 2018) (citing Tuxedo Monopoly, Inc. v.Gen. Mills Fun Grp., Inc., 648 F.2d 1335, 1336, 209 USPQ 986, 988 (C.C.P.A. 1981); Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1745 (TTAB 2014); Baseball Am. Inc. v. Powerplay Sports Ltd., 71 USPQ2d 1844, 1847 n.9 (TTAB 2004)).
Additionally, these goods have no restrictions as to nature, type, channels of trade, or classes of purchasers and are “presumed to travel in the same channels of trade to the same class of purchasers.” In re Viterra Inc., 671 F.3d 1358, 1362, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (quoting Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1268, 62 USPQ2d 1001, 1005 (Fed. Cir. 2002)). Thus, all of applicant’s and registrant’s goods are related.
In regards to the goods listed in registrant’s identification for Reg. No. 5714661’s International Class 28, these goods are highly related to applicant’s listed goods for International Class 9. Specifically, registrant’s “controllers for game consoles” are highly likely to be sold alongside applicant’s “memory cards for video game machines” and “graphics card”. See attached evidence from BestBuy, GameStop, Walmart, Office Depot, and NewEgg. Therefore, applicant and registrant’s goods are considered related for likelihood of confusion purposes. Furthermore, applicant applicant’s services in Class 35 are partially identified as being retail and wholesale services offering the goods listed in Class 9. As evident by the attached screenshots, there are many third party retailers which sell computers, video games, and computer-related goods online which renders the goods listed in International Class 9 for Reg. No. 5010657 and International Class 28 for Registration No. 5714661 highly related. See attached evidence from HP, Dell, Apple, and Microsoft. Thus, these goods and services are related because they are provided in the same channels of trade.
Additionally, applicant provides online retail and wholesale services in International Class 35 featuring computer hardware and software which applicant also listed as goods in their identification for International Class 9. These services therefore also relate to registrant’s identified goods in International Class 9, as discussed above. 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).
Additionally, where evidence shows that the goods at issue have complementary uses, and thus are often used together or otherwise purchased by the same purchasers for the same or related purposes, such goods have generally been found to be sufficiently related such that confusion would be likely if they are marketed under the same or similar marks. SeeIn re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 1567, 223 USPQ 1289, 1290 (Fed. Cir. 1984) (holding bread and cheese to be related because they are often used in combination and noting that “[s]uch complementary use has long been recognized as a relevant consideration in determining a likelihood of confusion”); In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1272 (TTAB 2009) (holding medical MRI diagnostic apparatus and medical ultrasound devices to be related, based in part on the fact that such goods have complementary purposes because they may be used by the same medical personnel on the same patients to treat the same disease). In this case, computer hardware and computer accessories are often sold and marketed together because they can be used without one another, often under the same mark. See attached evidence from Dell, Apple, Microsoft and HP. Thus, applicant’s and registrant’s goods are considered related for likelihood of confusion purposes. See, e.g., In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1202-04 (TTAB 2009); In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1268-69, 1271-72 (TTAB 2009).
Lastly, to the extent the evidence may not address all of the items in applicant’s identification, relatedness does not have to be established for every good or service. It is sufficient for a finding of likelihood of confusion if relatedness is established for any or some item(s) encompassed by the identification within a particular class in an application. Tuxedo Monopoly, Inc. v. General Mills Fun Group, 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981). In this case, relatedness has been established for many of the identified items, which is enough to show a likelihood of confusion.”
In summary, the marks are confusingly similar and the goods are partially identical and related. Accordingly, purchasers are likely to be confused as to the source of the goods. Thus, registration is refused pursuant to Section 2(d) of the Trademark Act.
Although applicant’s mark has been refused registration, applicant may respond to the refusal by submitting evidence and arguments in support of registration. Applicant should note the following additional ground for refusal.
Registration is refused because the specimen in International Class 35 does not show a direct association between the applied-for mark and the identified services; thus the specimen fails to show the applied-for mark in use 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); TMEP §§904, 904.07(a), 1301.04(f)(ii), (g)(i).
Specimens consisting of advertising or promotional materials must show a direct association between the mark and the services for which registration is sought. In re WAY Media, Inc., 118 USPQ2d 1697, 1698 (TTAB 2016) (quoting In re Universal Oil Prods. Co., 476 F.2d 653, 655, 177 USPQ 456, 457 (C.C.P.A. 1973)); TMEP §1301.04(f)(ii). To show this direct association, the specimen must contain an explicit reference to the services, in addition to the mark being used on the specimen to identify the service and its source. In re WAY Media, Inc., 118 USPQ2d at 1698 (quoting In re Osmotica Holdings, Corp., 95 USPQ2d 1666, 1668 (TTAB 2010)); TMEP §1301.04(f)(ii). While the exact nature of the services does not need to be specified in the specimen, there must be something which creates in the mind of the purchaser an association between the mark and the service. In re Adair, 45 USPQ2d 1211, 1215 (TTAB 1997) (quoting In re Johnson Controls Inc., 33 USPQ2d 1318, 1320 (TTAB 1994)).
In the present case, the specimen shows a NEWEGG sales page for the good used as a specimen for International Class 9. It does not show what applicant owns this webpage and its therefore offering these goods for sale themselves which is necessary to show that it is providing online retail store services featuring this good.
An application based on Trademark Act Section 1(a) must include a specimen showing the applied-for mark in use in commerce for each international class of 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).
Examples of specimens for services include advertising and marketing materials, brochures, photographs of business signage and billboards, and webpages that show the mark used in the actual sale, rendering, or advertising of the services. See TMEP §1301.04(a), (h)(iv)(C). And, as stated above, specimens comprising advertising or promotional materials must show a direct association between the mark and the services. In re WAY Media, Inc., 118 USPQ2d at 1698 (quoting In re Universal Oil Prods. Co., 476 F.2d at 655, 177 USPQ at 457); TMEP §1301.04(f)(ii).
Applicant may respond to this refusal by satisfying one of the following for each applicable international class:
(1) Submit a different specimen (a verified “substitute” specimen) 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 services identified in the application or amendment to allege use. A “verified substitute specimen” is a specimen that is accompanied by 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.” The substitute specimen cannot be accepted without this statement.
(2) Amend the filing basis to intent to use under Section 1(b), for which no specimen is required. This option will later necessitate additional fee(s) and filing requirements such as providing a specimen.
For an overview of both response options referenced above and instructions on how to satisfy either option online using the Trademark Electronic Application System (TEAS) form, please go to http://www.gov.uspto.report/trademarks/law/specimen.jsp.
IDENTIFICATION OF GOODS AND SERVICES
International Class 9:
The wording “computer software, recorded, for data processing and memory devices, namely, computer software for processing, data storage and input/ouput accelerating” in the identification of goods is indefinite and must be clarified because it is unclear what type of goods these are. See 37 C.F.R. §2.32(a)(6); TMEP §1402.01. Specifically, applicant must amend this wording to specify the common commercial or generic name of the goods. See TMEP §1402.01. If the goods have no common commercial or generic name, applicant must describe the product, its main purpose, and its intended uses. See id.
Applicant may substitute the following wording, if accurate: computer software, recorded, for data processing and memory devices, namely, computer software for {indicate function or purpose, e.g. image, graphics, and text} processing, data storage and accelerating computer functions
Applicant may substitute the following wording, if accurate: computer programs, recorded, for data processing and memory devices, namely, computer programs for processing, data storage and input/output accelerating, for use with video and computer games; Downloadable computer programs, for data processing and memory devices, namely, downloadable computer programs for processing, data storage and accelerating computer functions for use with video and computer games; Downloadable computer software applications for data processing and memory devices, namely, downloadable computer software for processing, data storage and accelerating computer functions for use with video and computer games
Moreover the wording “acoustic and electric couplers” and “integrated circuit cards/ smart cards” is indefinite because it is unclear what these goods are. Applicant must also correct the punctuation in the identification to clarify the individual items in the list of goods. See 37 C.F.R. §2.32(a)(6); TMEP §1402.01(a). Proper punctuation in identifications is necessary to delineate explicitly each product or service within a list and to avoid ambiguity. Commas, semicolons, and apostrophes are the only punctuation that should be used in an identification of goods and/or services. TMEP §1402.01(a). An applicant should not use colons, periods, exclamation points, and question marks in an identification. Id. In addition, applicants should not use symbols in the identification such as asterisks (*), at symbols (@), or carets. Id.
In general, commas should be used in an identification (1) to separate a series of related items identified within a particular category of goods or services, (2) before and after “namely,” and (3) between each item in a list of goods or services following “namely” (e.g., personal care products, namely, body lotion, bar soap, shampoo). Id. Semicolons generally should be used to separate a series of distinct categories of goods or services within an international class (e.g., personal care products, namely, body lotion; deodorizers for pets; glass cleaners). Id.
Applicant may adopt the following wording, if accurate: acoustic couplers and couplers for electronics; integrated circuit cards; blank smart cards
International Class 35:
Like the suggestion for International Class 9, applicant must correct the punctuation in the identification to clarify the individual items in the list of services. See 37 C.F.R. §2.32(a)(6); TMEP §1402.01(a).
The wording “commercial or industrial management assistance” “web indexing for commercial or advertising purposes”, “presentation of goods on communication media, for retail purposes”, “providing business information via a web site; online retail services for computers, computer hardware, computer software, telecommunication equipment, electronic materials, computer peripherals, and graphics card”, and “retail and wholesale services for computers, computer hardware, computer software, telecommunication equipment, electronic materials, computer peripherals, and graphics card” is indefinite because it is unclear what particular services applicant is referencing. Again, applicant must use the common commercial or generic name for the services or specify the function or purpose.
Applicant may adopt the following wording, if accurate: commercial and industrial management assistance; compiling indexes of information online for commercial or advertising purposes; Providing television home shopping services in the field of general consumer merchandise; online retail store services featuring computers, computer hardware, computer software, telecommunication equipment, electronic materials, computer peripherals, and graphics card; retail store and wholesale services featuring computers, computer hardware, computer software, telecommunication equipment, electronic materials, computer peripherals, and graphics card
In summary, applicant may adopt the following wording, if accurate:
International Class 9: Computers; computer hardware; computer software, recorded, for data processing and memory devices, namely, computer software for
{indicate function or purpose, e.g. image, graphics, text, etc} processing, data storage and input/output accelerating computer functions; data
processing apparatus; computer memory devices; Computer storage devices, namely, high-speed storage subsystems for storage and backup of electronic data either locally or via a telecommunications
network; computer programs, recorded, for data processing and memory devices, namely, computer programs for processing, data storage and input/output accelerating computer
functions for use with video and computer games; computer peripheral devices; Downloadable computer programs, for data processing and memory devices, namely, downloadable
computer programs for processing, data storage and input/output accelerating computer functions for use with video and computer games; Downloadable computer software
applications for data processing and memory devices, namely, downloadable computer software for processing, data storage and input/output accelerating for use with video and
computer games; acoustic couplers; and electric couplers for electronics; Computer central processing units; Optical character readers;
interfaces for computers; integrated circuit cards; blank smart cards integrated circuit cards / smart cards; memory cards for video game machines; graphics card;
Electronic chips for the manufacture of integrated circuits; integrated circuits
International Class 35: business management assistance; commercial or and industrial management assistance; commercial
administration of the licensing of the goods and services of others; import-export agency services; commercial information agency services; dissemination of advertising matter; updating of
advertising material; advertising / and publicity services; advertising agency services ; /publicity agency services;
compiling indexes of information for commercial or advertising purposes; design of advertising materials; web indexing compiling indexes of information online for
commercial or advertising purposes; on-line advertising on a computer network; organization of trade fairs for commercial or advertising purposes; television advertising; presentation of goods on
communication media, for retail purposes Providing television home shopping services in the field of general consumer merchandise; marketing services;
providing business information via a web site; online retail store services for featuring computers, computer hardware, computer software,
telecommunication equipment, electronic materials, computer peripherals, and graphics card; retail store and wholesale services for featuring
computers, computer hardware, computer software, telecommunication equipment, electronic materials, computer peripherals, and graphics card
Applicant may amend the identification to clarify or limit the goods and services, but not to broaden or expand the goods and services beyond those in the original application or as acceptably amended. See 37 C.F.R. §2.71(a); TMEP §1402.06. Generally, any deleted goods and services may not later be reinserted. See TMEP §1402.07(e).
For assistance with identifying and classifying goods and services in trademark applications, please see the USPTO’s online searchable U.S. Acceptable Identification of Goods and Services Manual. See TMEP §1402.04.
AMENDMENT TO DESCRIPTION OF MARK REQUIRED
The following description is suggested, if accurate: The mark consists of the stylized wording "RED" above the stylized wording "DEVIL", in between the horns-like extended lines of the letter “V”, with the word “DEVIL” appearing in a bigger font size and the letter "V" forming a stylized devil head design.
RESPONSE GUIDELINES
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.
Please call or email the assigned trademark examining attorney with questions about this Office action. Although the trademark examining attorney cannot provide legal advice or statements about applicant’s rights, the trademark examining attorney can provide applicant with additional explanation about the refusal(s) and/or requirement(s) in this Office action. See TMEP §§705.02, 709.06. Although the USPTO does not accept emails as responses to Office actions, emails can be used for informal communications and will be included in the application record. See 37 C.F.R. §§2.62(c), 2.191; TMEP §§304.01-.02, 709.04-.05.
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
Sasha Boshart Rios
/Sasha Boshart Rios/
Trademark Examining Attorney
Law Office 125
P: (571)272-2616
Sasha.Boshart@USPTO.GOV
RESPONSE GUIDANCE
