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)

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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. 88464547 LIVINGSTON(Standard Characters, see http://uspto.report/TM/88464547/mark.png) has been amended as follows:

ARGUMENT(S)
In response to the substantive refusal(s), please note the following:

Please see actual argument text attached in the Evidence section.

EVIDENCE
Evidence in the nature of actual argument text, Declaration of Rebecca Sears, Internet articles, Livingston historical catalog cover, screenshots of Applicant's website has been attached.
Original PDF file:
evi_2605e000141f41bd448a4d198977994-20200226173818373134_._LIVINGSTON_Office_Action_Response.pdf
Converted PDF file(s) ( 4 pages)
Evidence-1
Evidence-2
Evidence-3
Evidence-4
Original PDF file:
evi_2605e000141f41bd448a4d198977994-20200226173818373134_._Declaration_of_Rebecca_Sears.pdf
Converted PDF file(s) ( 3 pages)
Evidence-1
Evidence-2
Evidence-3
Original PDF file:
evi_2605e000141f41bd448a4d198977994-20200226173818373134_._1897_Livingston_Annual_Catalog.pdf
Converted PDF file(s) ( 1 page)
Evidence-1
Original PDF file:
evi_2605e000141f41bd448a4d198977994-20200226173818373134_._A_variety_of_tomatoes_from_Annual_of_true_blue_seeds__1897.pdf
Converted PDF file(s) ( 4 pages)
Evidence-1
Evidence-2
Evidence-3
Evidence-4
Original PDF file:
evi_2605e000141f41bd448a4d198977994-20200226173818373134_._Tomatoes_have_Reynoldsburg_roots_-_Columbus_Messenger.pdf
Converted PDF file(s) ( 3 pages)
Evidence-1
Evidence-2
Evidence-3
Original PDF file:
evi_2605e000141f41bd448a4d198977994-20200226173818373134_._Livingston_Company_History_Page_-_Victory_Seed_Company.pdf
Converted PDF file(s) ( 3 pages)
Evidence-1
Evidence-2
Evidence-3
Original PDF file:
evi_2605e000141f41bd448a4d198977994-20200226173818373134_._Livingstonseed___Quality_Matters.pdf
Converted PDF file(s) ( 3 pages)
Evidence-1
Evidence-2
Evidence-3
Original PDF file:
evi_2605e000141f41bd448a4d198977994-20200226173818373134_._Our_Brands___Livingston.pdf
Converted PDF file(s) ( 5 pages)
Evidence-1
Evidence-2
Evidence-3
Evidence-4
Evidence-5

CLASSIFICATION AND LISTING OF GOODS/SERVICES
Applicant proposes to amend the following:
Current: Class 031 for Seed balls for planting; Seed bombs for planting; Seeds for flowers; Seeds for horticultural purposes; Seeds for planting; Seeds for sowing; Crop seeds; Flower seeds; Fruit seeds; Grass seeds; Plant seeds; Sowing seeds; Vegetable seeds for planting
Filing Basis: Section 1(a), Use in Commerce: The applicant is using the mark in commerce, or the applicant's related company or licensee is using the mark in commerce, on or in connection with the identified goods and/or services. 15 U.S.C. Section 1051(a), as amended. The mark was first used at least as early as 12/01/1850 and first used in commerce at least as early as 12/01/1901 , and is now in use in such commerce.

Proposed:
Tracked Text Description: Seed balls for planting; Seeds for planting vegetables, herbs and flowers; Seed bombs for planting; Seeds for flowers; Seeds for horticultural purposes; Seeds for planting; Seeds for sowing; Crop seeds; Flower seeds; Fruit seeds; Grass seeds; Plant seeds; Sowing seeds; Vegetable seeds for plantingClass 031 for Seeds for planting vegetables, herbs and flowers
Filing Basis: Section 1(a), Use in Commerce: The applicant is using the mark in commerce, or the applicant's related company or licensee is using the mark in commerce, on or in connection with the identified goods and/or services. 15 U.S.C. Section 1051(a), as amended. The mark was first used at least as early as 12/01/1850 and first used in commerce at least as early as 12/01/1898 , and is now in use in such commerce.
In International Class 031,    the mark was first used at least as early as __________ and first used in commerce at least as early as 12/01/1898.

The owner's/holder's proposed attorney information Paulo A. de Almeida. Other appointed attorneys are Alex Patel, Andrew T. Rissler. Paulo A. de Almeida of Patel & Almeida, P.C., is a member of the XX bar, admitted to the bar in XXXX, bar membership no. XXX, and the attorney(s) is located at

      16830 Ventura Blvd., Suite 360
      Encino, California 91436
      United States
to submit this Response to Office Action Form on behalf of the applicant.
      The email address is trademarks@paiplaw.com

Paulo A. de Almeida 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):
      PLANTATION PRODUCTS LLC
      PRIMARY EMAIL FOR CORRESPONDENCE: rebeccas@plantationproducts.com
      SECONDARY EMAIL ADDRESS(ES) (COURTESY COPIES): NOT PROVIDED
Correspondence Information (proposed):
      Paulo A. de Almeida
      PRIMARY EMAIL FOR CORRESPONDENCE: trademarks@paiplaw.com
      SECONDARY EMAIL ADDRESS(ES) (COURTESY COPIES): NOT PROVIDED

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).

ADDITIONAL STATEMENTS
Miscellaneous Statement
Applicant's mark LIVINGSTON has become distinctive of the goods through the Applicant and its predecessor's substantially exclusive and continuous use of the mark in commerce that the U.S. Congress may lawfully regulate for at least the five years immediately before the date of this statement, specifically, since at least as early as 1898, which was more than a century ago. Further, the Examining Attorney issued the following Request for Information: (1) Whether LIVINGSTON has ever been used or will be used as a varietal or cultivar name; and (2) Whether LIVINGSTON has ever been used or will be used in connection with a plant patent, utility patent, or certificate for plant-variety protection. Applicant responds as follows: (1) No and (2) No.


SECTION 2(f) Claim of Acquired Distinctiveness, based on Five or More Years' Use
The mark has become distinctive of the goods/services through the applicant's substantially exclusive and continuous use of the mark in commerce that the U.S. Congress may lawfully regulate for at least the five years immediately before the date of this statement.


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: /Paulo A. de Almeida/      Date: 02/26/2020
Signatory's Name: Paulo A. de Almeida
Signatory's Position: Attorney
Signatory's Phone Number: 8183801900


Response Signature
Signature: /Paulo A. de Almeida/     Date: 02/26/2020
Signatory's Name: Paulo A. de Almeida
Signatory's Position: Attorney

Signatory's Phone Number: 8183801900

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:    PLANTATION PRODUCTS LLC
   PLANTATION PRODUCTS LLC
   
   202 SOUTH WASHINGTON ST
   NORTON, Massachusetts 02760
Mailing Address:    Paulo A. de Almeida
   Patel & Almeida, P.C.
   16830 Ventura Blvd., Suite 360
   Encino, California 91436
        
Serial Number: 88464547
Internet Transmission Date: Wed Feb 26 17:57:02 ET 2020
TEAS Stamp: USPTO/ROA-XXXX:XXXX:XXXX:XXXX:XXXX:XXXX:
XXX:XXXX-20200226175702778933-88464547-7
1089d64eeb379a72593de6029ff3267652e5aaec
f2ea889b2945fa22ccb972c82-N/A-N/A-202002
26173818373134