Response to Office Action

Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1957 (Rev 10/2011)

OMB No. 0651-0050 (Exp 09/20/2020)

---

Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1957 (Rev 10/2011)

OMB No. 0651-0050 (Exp 09/20/2020)

Response to Office Action

To the Commissioner for Trademarks:

Application serial no. 88463275 THE DIRT(Standard Characters, see http://uspto.report/TM/88463275/mark.png) has been amended as follows:

EVIDENCE
Evidence in the nature of Response to office action has been attached.
Original PDF file:
evi_63764866-20200227171523817648_._Daily_Harvest_-_office_action_response_regarding_THE_DIRT.pdf
Converted PDF file(s) ( 4 pages)
Evidence-1
Evidence-2
Evidence-3
Evidence-4

CLASSIFICATION AND LISTING OF GOODS/SERVICES
Applicant proposes to amend the following:
Current: Class 009 for Downloadable newsletters in the fields of food, ingredients, food growers and producers, restaurants and other food providers, recipes, and cooking information; downloadable audio and video material featuring information the fields of food, ingredients, food growers and producers, restaurants and other food providers, recipes, and cooking; downloadable podcasts in the fields of food, ingredients, food growers and producers, restaurants and other food providers, recipes, and cooking information
Filing Basis: Section 1(b), Intent to Use: For a trademark or service mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to use the mark in commerce on or in connection with the identified goods/services in the application. For a collective trademark, collective service mark, or collective membership mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by members on or in connection with the identified goods/services/collective membership organization. For a certification mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by authorized users in connection with the identified goods/services, and the applicant will not engage in the production or marketing of the goods/services to which the mark is applied, except to advertise or promote recognition of the certification program or of the goods/services that meet the certification standards of the applicant.

Proposed:
Tracked Text Description: Downloadable newsletters in the fields of food, ingredients, food growers and producers, restaurants and other food providers, recipes, and cooking information; downloadable audio and video material featuring information the fields of food, ingredients, food growers and producers, restaurants and other food providers, recipes, and cooking; downloadable audio and video recordings and files featuring information in the fields of food, ingredients, food growers and producers, restaurants and other food providers, recipes, and cooking; downloadable podcasts in the fields of food, ingredients, food growers and producers, restaurants and other food providers, recipes, and cooking informationClass 009 for Downloadable newsletters in the fields of food, ingredients, food growers and producers, restaurants and other food providers, recipes, and cooking information; downloadable audio and video recordings and files featuring information in the fields of food, ingredients, food growers and producers, restaurants and other food providers, recipes, and cooking; downloadable podcasts in the fields of food, ingredients, food growers and producers, restaurants and other food providers, recipes, and cooking information
Filing Basis: Section 1(b), Intent to Use: For a trademark or service mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to use the mark in commerce on or in connection with the identified goods/services in the application. For a collective trademark, collective service mark, or collective membership mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by members on or in connection with the identified goods/services/collective membership organization. For a certification mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by authorized users in connection with the identified goods/services, and the applicant will not engage in the production or marketing of the goods/services to which the mark is applied, except to advertise or promote recognition of the certification program or of the goods/services that meet the certification standards of the applicant.

Applicant proposes to amend the following:
Current: Class 016 for Printed newsletters in the fields of food, ingredients, food growers and producers, restaurants and other food providers, recipes, and cooking information
Filing Basis: Section 1(b), Intent to Use: For a trademark or service mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to use the mark in commerce on or in connection with the identified goods/services in the application. For a collective trademark, collective service mark, or collective membership mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by members on or in connection with the identified goods/services/collective membership organization. For a certification mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by authorized users in connection with the identified goods/services, and the applicant will not engage in the production or marketing of the goods/services to which the mark is applied, except to advertise or promote recognition of the certification program or of the goods/services that meet the certification standards of the applicant.

Proposed: Class 016 for Printed newsletters in the fields of food, ingredients, food growers and producers, restaurants and other food providers, recipes, and cooking information
Filing Basis: Section 1(b), Intent to Use: For a trademark or service mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to use the mark in commerce on or in connection with the identified goods/services in the application. For a collective trademark, collective service mark, or collective membership mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by members on or in connection with the identified goods/services/collective membership organization. For a certification mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by authorized users in connection with the identified goods/services, and the applicant will not engage in the production or marketing of the goods/services to which the mark is applied, except to advertise or promote recognition of the certification program or of the goods/services that meet the certification standards of the applicant.

Applicant proposes to amend the following:
Current: Class 041 for Providing a website featuring blogs and non-downloadable publications in the nature of newsletters and articles in the fields of food, ingredients, food growers and producers, restaurants and other food providers, recipes, and cooking information; entertainment services, namely, providing podcasts in the fields of food, ingredients, food growers and producers, restaurants and other food providers, recipes, and cooking information; providing a website featuring non-downloadable audio and video files featuring information on food, ingredients, food growers and producers, restaurants and other food providers, recipes, and cooking
Filing Basis: Section 1(b), Intent to Use: For a trademark or service mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to use the mark in commerce on or in connection with the identified goods/services in the application. For a collective trademark, collective service mark, or collective membership mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by members on or in connection with the identified goods/services/collective membership organization. For a certification mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by authorized users in connection with the identified goods/services, and the applicant will not engage in the production or marketing of the goods/services to which the mark is applied, except to advertise or promote recognition of the certification program or of the goods/services that meet the certification standards of the applicant.

Proposed: Class 041 for Providing a website featuring blogs and non-downloadable publications in the nature of newsletters and articles in the fields of food, ingredients, food growers and producers, restaurants and other food providers, recipes, and cooking information; entertainment services, namely, providing podcasts in the fields of food, ingredients, food growers and producers, restaurants and other food providers, recipes, and cooking information; providing a website featuring non-downloadable audio and video files featuring information on food, ingredients, food growers and producers, restaurants and other food providers, recipes, and cooking
Filing Basis: Section 1(b), Intent to Use: For a trademark or service mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to use the mark in commerce on or in connection with the identified goods/services in the application. For a collective trademark, collective service mark, or collective membership mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by members on or in connection with the identified goods/services/collective membership organization. For a certification mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by authorized users in connection with the identified goods/services, and the applicant will not engage in the production or marketing of the goods/services to which the mark is applied, except to advertise or promote recognition of the certification program or of the goods/services that meet the certification standards of the applicant.

Applicant proposes to amend the following:
Current: Class 043 for Providing a website featuring information in the fields of food, ingredients, food growers and producers, restaurants and other food providers, recipes, and cooking information; providing information in the fields of food, ingredients, food growers and producers, recipes, and cooking information
Filing Basis: Section 1(b), Intent to Use: For a trademark or service mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to use the mark in commerce on or in connection with the identified goods/services in the application. For a collective trademark, collective service mark, or collective membership mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by members on or in connection with the identified goods/services/collective membership organization. For a certification mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by authorized users in connection with the identified goods/services, and the applicant will not engage in the production or marketing of the goods/services to which the mark is applied, except to advertise or promote recognition of the certification program or of the goods/services that meet the certification standards of the applicant.

Proposed:
Tracked Text Description: Providing a website featuring information in the fields of food, ingredients, food growers and producers, restaurants and other food providers, recipes, and cooking information; Providing a website featuring information in the fields of food, ingredients, restaurants and other food providers, recipes, and cooking information; providing information in the fields of food, ingredients, food growers and producers, recipes, and cooking information; providing information in the fields of food, ingredients, recipes, and cooking informationClass 043 for Providing a website featuring information in the fields of food, ingredients, restaurants and other food providers, recipes, and cooking information; providing information in the fields of food, ingredients, recipes, and cooking information
Filing Basis: Section 1(b), Intent to Use: For a trademark or service mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to use the mark in commerce on or in connection with the identified goods/services in the application. For a collective trademark, collective service mark, or collective membership mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by members on or in connection with the identified goods/services/collective membership organization. For a certification mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by authorized users in connection with the identified goods/services, and the applicant will not engage in the production or marketing of the goods/services to which the mark is applied, except to advertise or promote recognition of the certification program or of the goods/services that meet the certification standards of the applicant.

Applicant hereby adds the following class of goods/services to the application:
New: Class 044 for Providing a website featuring information in the fields of food growers and producers; providing information in the field of food growers and producers
Filing Basis: Section 1(b), Intent to Use: For a trademark or service mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to use the mark in commerce on or in connection with the identified goods/services in the application. For a collective trademark, collective service mark, or collective membership mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by members on or in connection with the identified goods/services/collective membership organization. For a certification mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by authorized users in connection with the identified goods/services, and the applicant will not engage in the production or marketing of the goods/services to which the mark is applied, except to advertise or promote recognition of the certification program or of the goods/services that meet the certification standards of the applicant.

OWNER AND/OR ENTITY INFORMATION
Applicant proposes to amend the following:
Current: Daily Harvest, Inc., a corporation of Delaware, having an address of
      37 W 20th Street
      New York, New York 10011
      United States

Proposed: Daily Harvest, Inc., a corporation of Delaware, having an address of
      37 W 20th Street
      New York, New York 10011
      United States
      Email Address: NYTMOwner@mccarter.com

The owner's/holder's current attorney information: Margarita Wallach, Esq.. Margarita Wallach, Esq. of MCCARTER & ENGLISH, LLP, is located at

      WORLDWIDE PLAZA
      825 EIGHTH AVENUE, 31ST FLOOR
      NEW YORK, New York 10019
      United States
The docket/reference number is 130222.
      The phone number is 212-609-6800.
      The email address is mwallach@mccarter.com

The owner's/holder's proposed attorney information: Margarita Wallach, Esq.. Other appointed attorneys are Kelly Garrone, Esq.. Margarita Wallach, Esq. of MCCARTER & ENGLISH, LLP, is a member of the XX bar, admitted to the bar in XXXX, bar membership no. XXX, and the attorney(s) is located at

      WORLDWIDE PLAZA
      825 EIGHTH AVENUE, 31ST FLOOR
      NEW YORK, New York 10019
      United States
The docket/reference number is 130222/00074.
      The phone number is 212-609-6800.
      The email address is mwallach@mccarter.com

Margarita Wallach, Esq. submitted the following statement: The attorney of record is an active member in good standing of the bar of the highest court of a U.S. state, the District of Columbia, or any U.S. Commonwealth or territory.Correspondence Information (current):
      MARGARITA WALLACH, ESQ.
      PRIMARY EMAIL FOR CORRESPONDENCE: mwallach@mccarter.com
      SECONDARY EMAIL ADDRESS(ES) (COURTESY COPIES): kgarrone@mccarter.com; dlynch@mccarter.com; nytmdocket@mccarter.com

The docket/reference number is 130222.
Correspondence Information (proposed):
      Margarita Wallach, Esq.
      PRIMARY EMAIL FOR CORRESPONDENCE: mwallach@mccarter.com
      SECONDARY EMAIL ADDRESS(ES) (COURTESY COPIES): kgarrone@mccarter.com; dlynch@mccarter.com; nytmdocket@mccarter.com

The docket/reference number is 130222/00074.

Requirement for Email and Electronic Filing: I understand that a valid email address must be maintained by the owner/holder and the owner's/holder's attorney, if appointed, and that all official trademark correspondence must be submitted via the Trademark Electronic Application System (TEAS).

FEE(S)
Fee(s) in the amount of $275 is being submitted.

SIGNATURE(S)
Declaration Signature

DECLARATION: The signatory being warned that willful false statements and the like are punishable by fine or imprisonment, or both, under 18 U.S.C. § 1001, and that such willful false statements and the like may jeopardize the validity of the application or submission or any registration resulting therefrom, declares that, if the applicant submitted the application or allegation of use (AOU) unsigned, all statements in the application or AOU and this submission based on the signatory's own knowledge are true, and all statements in the application or AOU and this submission made on information and belief are believed to be true.

STATEMENTS FOR UNSIGNED SECTION 1(a) APPLICATION/AOU: If the applicant filed an unsigned application under 15 U.S.C. §1051(a) or AOU under 15 U.S.C. §1051(c), the signatory additionally believes that: the applicant is the owner of the mark sought to be registered; the mark is in use in commerce and was in use in commerce as of the filing date of the application or AOU on or in connection with the goods/services/collective membership organization in the application or AOU; the original specimen(s), if applicable, shows the mark in use in commerce as of the filing date of the application or AOU on or in connection with the goods/services/collective membership organization in the application or AOU; for a collective trademark, collective service mark, collective membership mark application, or certification mark application, the applicant is exercising legitimate control over the use of the mark in commerce and was exercising legitimate control over the use of the mark in commerce as of the filing date of the application or AOU; for a certification mark application, the applicant is not engaged in the production or marketing of the goods/services to which the mark is applied, except to advertise or promote recognition of the certification program or of the goods/services that meet the certification standards of the applicant. To the best of the signatory's knowledge and belief, no other persons, except, if applicable, authorized users, members, and/or concurrent users, have the right to use the mark in commerce, either in the identical form or in such near resemblance as to be likely, when used on or in connection with the goods/services/collective membership organization of such other persons, to cause confusion or mistake, or to deceive.

STATEMENTS FOR UNSIGNED SECTION 1(b)/SECTION 44 APPLICATION AND FOR SECTION 66(a) COLLECTIVE/CERTIFICATION MARK APPLICATION: If the applicant filed an unsigned application under 15 U.S.C. §§ 1051(b), 1126(d), and/or 1126(e), or filed a collective/certification mark application under 15 U.S.C. §1141f(a), the signatory additionally believes that: for a trademark or service mark application, the applicant is entitled to use the mark in commerce on or in connection with the goods/services specified in the application; the applicant has a bona fide intention to use the mark in commerce and had a bona fide intention to use the mark in commerce as of the application filing date; for a collective trademark, collective service mark, collective membership mark, or certification mark application, the applicant has a bona fide intention, and is entitled, to exercise legitimate control over the use of the mark in commerce and had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce as of the application filing date; the signatory is properly authorized to execute the declaration on behalf of the applicant; for a certification mark application, the applicant will not engage in the production or marketing of the goods/services to which the mark is applied, except to advertise or promote recognition of the certification program or of the goods/services that meet the certification standards of the applicant. To the best of the signatory's knowledge and belief, no other persons, except, if applicable, authorized users, members, and/or concurrent users, have the right to use the mark in commerce, either in the identical form or in such near resemblance as to be likely, when used on or in connection with the goods/services/collective membership organization of such other persons, to cause confusion or mistake, or to deceive.

Signature: /mw/      Date: 02/27/2020
Signatory's Name: Margarita Wallach, Esq.
Signatory's Position: Attorney of Record, New York Bar Member
Signatory's Phone Number: (212) 609-6800


Response Signature
Signature: /mw/     Date: 02/27/2020
Signatory's Name: Margarita Wallach
Signatory's Position: Attorney of record, NY bar member

Signatory's Phone Number: 212-609-6819

The signatory has confirmed that he/she is a U.S.-licensed 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); and he/she is currently the owner's/holder's attorney or an associate thereof; and to the best of his/her knowledge, if prior to his/her appointment another U.S.-licensed attorney not currently associated with his/her company/firm previously represented the owner/holder in this matter: the owner/holder has revoked their power of attorney by a signed revocation or substitute power of attorney with the USPTO; the USPTO has granted that attorney's withdrawal request; the owner/holder has filed a power of attorney appointing him/her in this matter; or the owner's/holder's appointed U.S.-licensed attorney has filed a power of attorney appointing him/her as an associate attorney in this matter.

Mailing Address:    MARGARITA WALLACH, ESQ.
   MCCARTER & ENGLISH, LLP
   WORLDWIDE PLAZA
   825 EIGHTH AVENUE, 31ST FLOOR
   NEW YORK, New York 10019
Mailing Address:    Margarita Wallach, Esq.
   MCCARTER & ENGLISH, LLP
   WORLDWIDE PLAZA
   825 EIGHTH AVENUE, 31ST FLOOR
   NEW YORK, New York 10019
        
RAM Sale Number: 88463275
RAM Accounting Date: 02/27/2020
        
Serial Number: 88463275
Internet Transmission Date: Thu Feb 27 20:22:49 ET 2020
TEAS Stamp: USPTO/ROA-XX.XX.XX.XX-202002272022495947
88-88463275-710753a8088c9e602135d8fe2ac9
8b909137e541658c5e0aacf6573d75ff995d1-DA
-22495176-20200227171523817648