To: | PPG INDUSTRIES OHIO, INC. (nyustmp@ladas.com) |
Subject: | U.S. Trademark Application Serial No. 88460777 - FAST DRY - 1T19715797 |
Sent: | March 04, 2020 09:46:26 AM |
Sent As: | ecom104@uspto.gov |
Attachments: | Attachment - 1 Attachment - 2 Attachment - 3 Attachment - 4 Attachment - 5 Attachment - 6 Attachment - 7 Attachment - 8 Attachment - 9 Attachment - 10 Attachment - 11 Attachment - 12 Attachment - 13 Attachment - 14 Attachment - 15 Attachment - 16 Attachment - 17 Attachment - 18 Attachment - 19 Attachment - 20 Attachment - 21 Attachment - 22 Attachment - 23 Attachment - 24 Attachment - 25 Attachment - 26 Attachment - 27 Attachment - 28 Attachment - 29 Attachment - 30 Attachment - 31 |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88460777
Mark: FAST DRY
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Correspondence Address:
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Applicant: PPG INDUSTRIES OHIO, INC.
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Reference/Docket No. 1T19715797
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: March 04, 2020
This Office action is in response to applicant’s February 6, 2020, communication in which the applicant presented arguments in response to the Trademark Act Section 2(e)(1) refusal and amended the application to include a claim of acquired distinctiveness in response to the Trademark Act Section 2(e)(1) refusal.
For the reasons set forth below, applicant’s claim of five years’ use is insufficient to establish acquired distinctiveness. Accordingly, the Trademark Act Section 2(e)(1) refusal is maintained and continued.
Five Years’ Use Insufficient for Section 2(f) Claim
Fast Dry Gloss White Spray Paint, 10 oz http://www.summitracing.com/parts/smm-39143
5 Gallon Fast Dry Water Based Street Paint http://www.asphaltsealcoatingdirect.com/products/5-gallon-fast-dry-water-based-street-paint
Traffic Paint – Fast Dry Waterbase http://translineinc.com/products/pavement-marking-supplies/traffic-paint/traffic-paint-fast-dry-waterbase/
Paint, Trim, Fast Dry, Satin Black, Aerosol, 12 oz., Each http://www.summitracing.com/parts/smm-39143
FastDry is a fast drying paint that dries to the touch in about 15 minutes, and can be recoated in 2 hours. http://pittsburghpaintsandstains.com/fastdry (use of “fast drying paint” in connection with applicant’s applied-for mark)
The aforementioned evidence also demonstrates that applicant’s use of the wording FAST DRY is not substantially exclusive.
Applicant may respond by providing additional evidence of acquired distinctiveness, such as verified statements of long term use, advertising and sales expenditures, examples of advertising, affidavits and declarations of consumers, customer surveys. See 37 C.F.R. §2.41(a)(3); TMEP §§1212.02(g), 1212.06 et seq.
When determining whether the evidence shows the mark has acquired distinctiveness, the trademark examining attorney will consider the following six factors: (1) association of the mark with a particular source by actual purchasers (typically measured by customer surveys linking the name to the source); (2) length, degree, and exclusivity of use; (3) amount and manner of advertising; (4) amount of sales and number of customers; (5) intentional copying; and (6) unsolicited media coverage. See Converse, Inc. v. ITC, 909 F.3d 1110, 1120, 128 USPQ2d 1538, 1546 (Fed. Cir. 2018) (“the Converse factors”). “[N]o single factor is determinative.” In re Steelbuilding.com, 415 F.3d at 1300, 75 USPQ2d at 1424; see TMEP §§1212.06 et seq. Rather, all factors are weighed together in light of all the circumstances to determine whether the mark has acquired distinctiveness. In re Steelbuilding.com, 415 F.3d at 1300, 75 USPQ2d at 1424. This evidence must demonstrate that the relevant public understands the primary significance of the mark as identifying the source of applicant’s product or service rather than identifying the product or service itself. In re Steelbuilding.com, 415 F.3d at 1297, 75 USPQ2d at 1422.
As well as submitting additional evidence, applicant may respond to the refusal by arguing in support of registration and/or amending the application to seek registration on the Supplemental Register. See 15 U.S.C. §1091(a); 37 C.F.R. §§2.47, 2.75(a); TMEP §816. If applicant amends the application to the Supplemental Register, applicant is not precluded from submitting evidence and
CONTACT INFORMATION
The USPTO does not accept emails as responses to Office actions; however, emails can be used for informal communications and are included in the application record. See 37 C.F.R. §§2.62(c), 2.191; TMEP §§304.01-.02, 709.04-.05.
How to respond. Click to file a response to this nonfinal Office action.
/Christine Martin/
Examining Attorney
Law Office 104
571-272-1630
christine.martin@uspto.gov
RESPONSE GUIDANCE