To: | Multidisciplinary Association of Psyched ETC. (Lara@BrandGeek.net) |
Subject: | U.S. Trademark Application Serial No. 88468908 - PSYCHEDELIC SCIENCE 20__ - N/A |
Sent: | April 06, 2020 09:31:14 AM |
Sent As: | ecom103@uspto.gov |
Attachments: | Attachment - 1 Attachment - 2 Attachment - 3 Attachment - 4 |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88468908
Mark: PSYCHEDELIC SCIENCE 20__
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Correspondence Address: BRAND GEEK/ LAW OFFICE OF LARA PEARSON L
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Applicant: Multidisciplinary Association of Psyched ETC.
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Reference/Docket No. N/A
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: April 06, 2020
INTRODUCTION
This Office action is in response to applicant’s communication filed on March 3, 2020.
In a previous Office action(s) dated September 9, 2019, the trademark examining attorney refused registration of the applied-for mark based on the following: Trademark Act Section 2(d) for a likelihood of confusion with a registered mark, failure to show the applied-for mark in use in commerce with any of the specified services.
In response to the previous Office action, applicant has submitted a verified statement of five years’ use and amended the application to seek registration on the Principal Register under Trademark Act Section 2(f) based on a claim of acquired distinctiveness. For the reasons set forth below, the refusal under Trademark Act Section 2(e)(1) is maintained and continued. See TMEP §713.02.
In addition, the following refusal(s) has been withdrawn: Mark on the Drawing and Specimen Differ. Id.
The following is a SUMMARY OF ISSUES that applicant must address:
• Section 2(e)(1) Refusal – Merely Descriptive
• NEW ISSUE: Section 2(f) Acquired Distinctiveness Claim Insufficient
SECTION 2(e)(1) REFUSAL - MERELY DESCRIPTIVE
Based on applicant’s response, the refusal under Trademark Act Section 2(e)(1) is MAINTAINED and CONTINUED.
Registration is refused because the applied-for mark merely describes a feature of applicant’s services. Trademark Act Section 2(e)(1), 15 U.S.C. §1052(e)(1); see TMEP §§1209.01(b), 1209.03 et seq.
Generally, if the individual components of a mark retain their descriptive meaning in relation to the goods and/or services, the combination results in a composite mark that is itself descriptive and not registrable. In re Fat Boys Water Sports LLC, 118 USPQ2d 1511, 1516 (TTAB 2016) (citing In re Tower Tech, Inc., 64 USPQ2d 1314, 1317-18 (TTAB (2002)); TMEP §1209.03(d); see, e.g., Apollo Med. Extrusion Techs., Inc. v. Med. Extrusion Techs., Inc., 123 USPQ2d 1844, 1851 (TTAB 2017) (holding MEDICAL EXTRUSION TECHNOLOGIES merely descriptive of medical extrusion goods produced by employing medical extrusion technologies); In re Cannon Safe, Inc., 116 USPQ2d 1348, 1351 (TTAB 2015) (holding SMART SERIES merely descriptive of metal gun safes); In re King Koil Licensing Co., 79 USPQ2d 1048, 1052 (TTAB 2006) (holding THE BREATHABLE MATTRESS merely descriptive of beds, mattresses, box springs, and pillows).
Only where the combination of descriptive terms creates a unitary mark with a unique, incongruous, or otherwise nondescriptive meaning in relation to the goods and/or services is the combined mark registrable. See In re Colonial Stores, Inc., 394 F.2d 549, 551, 157 USPQ 382, 384 (C.C.P.A. 1968); In re Positec Grp. Ltd., 108 USPQ2d 1161, 1162-63 (TTAB 2013).
In this case, both the individual components and the composite result are descriptive of applicant’s goods and/or services and do not create a unique, incongruous, or nondescriptive meaning in relation to the goods and/or services.
The previously attached dictionary evidence indicates the terms in applicant’s mark are defined as follows:
PSYCHEDELIC: “of, relating to, or being drugs (such as LSD) capable of producing abnormal psychic effects (such as hallucinations) and sometimes psychotic states”
SCIENCE: “systematized knowledge derived from observation, study, and experimentation carried on in order to determine the nature or principles of what is being studied”
Further, as applicant states in its response, the changeable date “20__” indicates the year of applicant’s event. Thus, the changeable date “20__” fails to function as a mark to indicate source because it merely provides information regarding the year applicant’s event will take place. Matter is merely informational and does not function as a mark when, based on its nature and the context of its use by the applicant and/or others in the marketplace, consumers would perceive it as merely conveying general information about the goods or services or an informational message, and not as a means to identify and distinguish the applicant’s goods/services from those of others. See TMEP §1202.04.
Hence, the terms in the applied-for mark, individually, describe, or provide information about, a feature of applicant’s services, and the composite result does not create a nondescriptive meaning in relation to the services. Consumers who encounter applicant’s mark will immediately presume that the subject matter of applicant’s educational services and website featuring non-downloadable videos is “PSYCHEDELIC SCIENCE”.
The attached Internet evidence from http://psfc.co, http://thescienceexplorer.com, http://fairhaven.wwu.edu, and www.nytimes.com demonstrates that the wording, “PSYCHEDELIC SCIENCE”, in the applied-for mark is a known field of study, and is merely descriptive of the subject matter of applicant’s educational services.
Moreover, as stated in the previous Office action, applicant’s specimen of record also demonstrates that PSYCHEDELIC SCIENCE is merely descriptive of the applied-for services. Specifically, the first page of the specimen reads:
At Psychedelic Science 2017, scientists, doctors, therapists, students, educators, policymakers, artists, and others from around the world will come together to share and discover recently completed and ongoing research into the risks and benefits of psychedelics and medical marijuana for science, medicine, spirituality, creativity, and more. (emphasis added)
Here, someone who knows what applicant’s services are will understand the applied-for mark to convey information about them because the evidence of record demonstrates that PSYCHEDLIC SCIENCE is a known field of study.
Accordingly, the mark PSYCHEDELIC SCIENCE is merely descriptive of a feature of applicant’s services, and registration is properly refused on the Principal Register under Section 2(e)(1).
SUPPLEMENTAL REGISTER – ADVISORY
SECTION 2(f) ACQUIRED DISTINCTIVENESS CLAIM INSUFFICIENT
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 arguments against this refusal. TMEP §816.04.
Please call or email the assigned trademark examining attorney with questions about this Office action. Although an examining attorney cannot provide legal advice, the examining attorney can provide additional explanation about the refusal(s) and/or requirement(s) in this Office action. See TMEP §§705.02, 709.06.
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.
/Chioma (Bata) Oputa/
Examining Attorney
Law Office 103
571-272-5234
chioma.oputa@uspto.gov
RESPONSE GUIDANCE