To: | NISSIN FOODS HOLDINGS CO., LTD. (drwtrademarks@wolfgreenfield.com) |
Subject: | U.S. Trademark Application Serial No. 88456778 - STIR FRY - N06022000200 |
Sent: | September 09, 2019 09:40:19 AM |
Sent As: | ecom113@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. 88456778
Mark: STIR FRY
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Correspondence Address: WOLF, GREENFIELD & SACKS, P.C.
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Applicant: NISSIN FOODS HOLDINGS CO., LTD.
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Reference/Docket No. N06022000200
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:
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).
AMENDED DESCRIPTION OF THE MARK REQUIRED
Applicant must submit an amended description of the mark because the current one is incomplete and does not describe all the significant aspects of the mark. 37 C.F.R. §2.37; see TMEP §§808.01, 808.02. Descriptions must be accurate and identify all the literal and design elements in the mark. See 37 C.F.R. §2.37; TMEP §§808 et seq. Specifically, the mark appears to be on a black square which in not described in the mark description.
The following description is suggested, if accurate:
The mark consists of a shaded square on which are the words “STIR FRY” with the "I" represented as two chopsticks with a noodle wrapped around them.
Alternately, if the black square is not a part of the mark, applicant must submit a new drawing which shows the mark in black on a white background. 37 C.F.R. §2.52(b).
DISCLAIMER REQUIRED
Applicant must provide a disclaimer of the unregistrable part of the applied-for mark even though the mark as a whole appears to be registrable. See 15 U.S.C. §1056(a); TMEP §§1213, 1213.03(a). A disclaimer of an unregistrable part of a mark will not affect the mark’s appearance. See Schwarzkopf v. John H. Breck, Inc., 340 F.2d 978, 979-80, 144 USPQ 433, 433 (C.C.P.A. 1965).
In this case, applicant must disclaim the wording “STIR FRY” because it is not inherently distinctive. This unregistrable term is at best are merely descriptive of an ingredient, quality, characteristic, function, feature, purpose, or use of applicant’s good. See 15 U.S.C. §1052(e)(1); DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 1251, 103 USPQ2d 1753, 1755 (Fed. Cir. 2012); TMEP §§1213, 1213.03(a).
The attached evidence from the American Heritage Dictionary shows this wording meaning “to fry quickly in a small amount of oil over high heat while stirring continuously” is descriptive. Evidence from Eating Well.com, the Reluctant Gourmet and Bird’s Eye show that “stir fry” is a common method of preparing noodles and noodle soup. Further, the term “stir fry” is used by others to describe their noodle goods (see attached product examples from No Yolks, KA ME, and Fortune). Thus in the context of noodles and noodle soups, the term immediately conveys that applicant’s food goods are cooked in oil over high heat while being stirred continually. As a result purchasers will understand this term as conveying information about a feature of the good rather than denoting their source.
Applicant may respond to this issue by submitting an amended disclaimer in the following format:
No claim is made to the exclusive right to use “STIR FRY” apart from the mark as shown.
See TMEP §1213.08(a)(i).
For an overview of disclaimers and instructions on how to satisfy this issue using the Trademark Electronic Application System (TEAS), see the Disclaimer webpage.
ATTORNEY INFORMATION REQUIRED
Per the U.S. counsel rule changes that took effect August 3, 2019, the following information is required.
Attorney bar information required. Applicant’s attorney must provide the following bar information: (1) his or her bar membership number, if the bar provides one; (2) the name of the U.S. state, commonwealth, or territory of his or her bar membership; and (3) the year of his or her admission to the bar. 37 C.F.R. §2.17(b)(3). This information is required for all U.S.-licensed attorneys who are representing trademark applicants at the USPTO. Id. If the attorney’s bar does not issue bar membership numbers, applicant must state this for the record. See id.
Attorney attestation required. Applicant’s attorney must provide the following statement: “I
attest that I am an attorney who is an active member in good standing of the bar of the highest court of a U.S. state (including the District of Columbia and any U.S. Commonwealth or territory).” See 37 C.F.R. §2.17(b)(3). This is required for all U.S.-licensed attorneys who are representing trademark applicants at the USPTO. Id.
To provide attorney bar credentials. Open the correct TEAS response form and enter the serial number, answer “yes” to wizard question #3, and on the “Additional Statement(s)” page in the “Miscellaneous Statement” field (1) explain the documentation provided and (2) click the button below the text box to attach evidence.
RESPONSE GUIDELINES
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
/Fabiola Gallego/
Examining Attorney, Law Office 113
United States Patent and Trademark Office
Fabiola.Gallego@uspto.gov
RESPONSE GUIDANCE