To: | ORTIGOSA TORRES, RODRIGO DAVID (mail@marcas-estadosunidos.com) |
Subject: | U.S. Trademark Application Serial No. 88429621 - HERBOLARIO BAR CONSCIENTE - N/A |
Sent: | July 30, 2019 10:27:59 PM |
Sent As: | ecom108@uspto.gov |
Attachments: | Attachment - 1 Attachment - 2 Attachment - 3 Attachment - 4 Attachment - 5 |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88429621
Mark: HERBOLARIO BAR CONSCIENTE
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Correspondence Address: |
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Applicant: ORTIGOSA TORRES, RODRIGO DAVID
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Reference/Docket No. N/A
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 30, 2019
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
The referenced application and Voluntary Amendments of June 2 and 3, 2019 have been reviewed by the assigned trademark examining attorney. Applicant must respond timely and completely to the issue(s) below. 15 U.S.C. §1062(b); 37 C.F.R. §§2.62(a), 2.65(a); TMEP §§711, 718.03.
SEARCH OF 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).
Informalities
1. Entity Indefinite
The applicant made the following statement concerning the listing of its name in its Voluntary Amendment of June 3, 2019:
“Applicant's first name is Rodrigo. Applicant does not have a middle name. ‘David Ortigosa’ comprises applicant's father surname and Torres comprises applicant's mother's surname. In Mexico, individuals include both their father's and the mother's surnames as part of their legal names. Accordingly, applicant's name is Rodrigo (first name) David Ortigosa (father's surname) Torres (mother's surname).”
The applicant must clearly state what the applicant’s name is. The applicant states that it is an individual of Mexico. Therefore, the applicant’s name must be the name of an individual, listed clearly.
See TMEP §803.03(c).
If, in response to the above request, applicant provides information indicating that it is not the owner of the mark, registration will be refused because the application was void as filed. See 37 C.F.R. §2.71(d); TMEP §§803.06, 1201.02(b). An application must be filed by the party who owns or is entitled to use the mark as of the application filing date. See 37 C.F.R. §2.71(d); TMEP §1201.02(b).
2. Request for Information
To permit proper examination of the application, applicant must submit additional information about the goods and services. See 37 C.F.R. §2.61(b); In re AOP LLC, 107 USPQ2d 1644, 1650-51 (TTAB 2013); In re Cheezwhse.com, Inc., 85 USPQ2d 1917, 1919 (TTAB 2008); In re Planalytics, Inc., 70 USPQ2d 1453, 1457-58 (TTAB 2004); TMEP §814. The requested information should include fact sheets, instruction manuals, brochures, and/or advertisements. If these materials are unavailable, applicant should submit similar documentation for goods of the same type, explaining how its own product will differ. If the goods feature new technology and no information regarding competing goods is available, applicant must provide a detailed factual description of the goods.
Factual information about the goods must make clear how they operate, salient features, and prospective customers and channels of trade. Conclusory statements will not satisfy this requirement for information.
Applicant must explain whether any of the following wording, either alone or together has any meaning or significance in or with the applicant’s services or is a term of at within applicant’s industry: “herbolario”, “herbalist”, “bar” in Spanish, “consciente”, “conscious” or “bar” in English or “HERBOLARIO BAR CONSCIENTE” or “HERBALIST CONSCIOUS BAR”. See 37 C.F.R. §2.61(b); TMEP §814.
Further, applicant must provide additional information about this wording to enable proper examination of the application. Specifically, applicant must respond to the following questions:
n Does the applicant raise or lower conscious through its services?
n Is the applicant a “herbalist”?
n Is there such a thing as a “herbalist bar”?
n Is there such a thing as a “bar of consciousness”?
n Is there such a thing as a “consciousness bar”?
n Does the applicant put any herbs in the drinks it serves?
n Do any of the drinks the applicant’s serves raise or lower consciousness?
Failure to respond to a request for information is an additional ground for refusing registration. See In re DTI, 67 USPQ2d at 1701-02. Merely stating that information about the goods is available on applicant’s website is an inappropriate response to a request for additional information and is insufficient to make the relevant information of record. See In re Planalytics, Inc., 70 USPQ2d 1453, 1457-58 (TTAB 2004).
3. Requirement for a Disclaimer
Applicant must disclaim the descriptive wording “BAR” apart from the mark as shown. See 15 U.S.C. §1056(a); TMEP §§1213, 1213.03(a).
The term “BAR” means “a place where you go to buy and drink alcoholic drinks” or “a small place that serves a particular type of food.” See the enclosed dictionary definition. The term “BAR” merely describes a feature of the services, namely, where or what the customer eats or drinks.
A “disclaimer” is a statement that applicant does not claim exclusive rights to an unregistrable component of a mark. TMEP §1213. A disclaimer does not require removal of the element being disclaimed or otherwise affect the appearance of the applied-for mark. See TMEP §1213.10.
Applicant may respond to this issue by submitting a disclaimer in the following format:
No claim is made to the exclusive right to use “BAR” apart from the mark as shown.
TMEP §1213.08(a)(i); see In re Owatonna Tool Co., 231 USPQ 493, 494 (Comm’r Pats. 1983).
Examiner’s Amendment Recommended - Only If Applicable
Examiner’s Amendments cannot be issued for partial amendments. However, if all of the outstanding issues can be resolved through an Examiner’s Amendment, the applicant is encouraged to respond to this Office Action by amending the application in a telephone call with the examining attorney to expedite the processing of the application. Generally, only the submission of arguments to overcome a substantive refusal or an informal requirement, a requirement for the submission of specimens, a particular document or declaration, or the payment of a fee cannot be handled over the telephone.
Questions Regarding This Office Action
Responding to Office Action
The USPTO applies the following legal authority to a trademark application:
• The Trademark Act of 1946 (15 U.S.C. §§1051 et seq.)
• The Trademark Rules of Practice (37 C.F.R. pts. 2, 3, 6, 7, 11)
• Precedential court and Trademark Trial and Appeal Board (TTAB) decisions
• The Trademark Manual of Examining Procedure (TMEP)
• The Trademark Trial and Appeal Board Manual of Procedure (TBMP)
Please note that applicant must explicitly address all issues raised in this Office Action. If the issues are substantive refusals, the applicant may respond with arguments and evidence to overcome the refusal. To respond to requirements/informalities the applicant must specifically request that changes to the record be made.
There is no required format or form for responding to an Office Action. The Office recommends applicants use the Trademark Electronic Application System (TEAS) to respond to Office Actions online at http://www.gov.uspto.report/teas/index.html. TO RESPOND TO THIS LETTER VIA TEAS: Go to http://www.gov.uspto.report/trademarks/teas/response_forms.jsp. Please wait 48-72 hours from the issue/mailing date before using the Trademark Electronic Application System (TEAS), to allow for necessary system updates of the application. For technical assistance with online forms, e-mail TEAS@uspto.gov.
WHO MUST SIGN THE RESPONSE: It must be personally signed by an individual applicant or someone with legal authority to bind an applicant (i.e., a corporate officer, a general partner, all joint applicants). If an applicant is represented by an attorney, the attorney must sign the response.
If applicant responds on paper via regular mail, applicant should include the following information on all correspondence with the Office: (1) the name and law office number of the trademark examining attorney, (2) the serial number and filing date of the application, (3) the date of issuance of this Office action, (4) applicant’s name, address, telephone number and e-mail address (if applicable), and (5) the mark. 37 C.F.R. §2.194(b)(1); TMEP §302.03(a).
PERIODICALLY CHECK THE STATUS OF THE APPLICATION: To ensure that applicant does not miss crucial deadlines or official notices, check the status of the application every three to four months using the Trademark Status and Document Retrieval (TSDR) system at http://tsdr.gov.uspto.report/. Please keep a copy of the TSDR status screen. If the status shows no change for more than six months, contact the Trademark Assistance Center by e-mail at TrademarkAssistanceCenter@uspto.gov or call 1-800-786-9199. For more information on checking status, see http://www.gov.uspto.report/trademarks/process/status/.
TO UPDATE CORRESPONDENCE/E-MAIL ADDRESS: Use the TEAS form at http://www.gov.uspto.report/trademarks/teas/correspondence.jsp.
/Michael A. Wiener/
Trademark Attorney
Law Office 108
(T): (571) 272-8836
E-Mail (unofficial correspondence only):
michael.wiener@uspto.gov
RESPONSE GUIDANCE