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. 88488273 KOALA BABY(Standard Characters, see http://uspto.report/TM/88488273/mark.png) has been amended as follows:

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

RESPONSE TO OFFICE ACTION

In an Office Action issued September 23, 2019, the Examining Attorney preliminarily refused registration of Applicant’s mark KOALA BABY pursuant to Section 2(d) of the Lanham Act, 15 U.S.C. § 1052(d). The Examining Attorney also required Applicant to: (1) clarify its identification of goods; and (2) disclaim allegedly descriptive wording from the mark pursuant to Section 6 of the Lanham Act, 15 U.S.C. § 1056. In response, Applicant hereby submits the following amendments and response in support of registration.

I. IDENTIFICATION OF GOODS

In response to the Examining Attorney’s requirement that Applicant clarify the applied-for goods, Applicant hereby submits via the online TEAS submission system the following amended identification of goods:

-- baby lotions and oils; sun-block lotions; non-medicated skin care preparations, namely, lotions; skin oils for cosmetic use; body washes; shampoos; hair conditioners [Int’l Cl. 03] --

II. DISCLAIMER OF “BABY”

In response to the Examining Attorney’s requirement that Applicant enter a disclaimer of “BABY,” Applicant hereby submits via the online TEAS submission system the following disclaimer, which Applicant requests be entered into the record:

No claim is made to the exclusive right to use “BABY” apart from the mark as shown.

III. NO LIKELIHOOD OF CONFUSION

In the Office Action, the Examining Attorney preliminarily refused registration of Applicant’s mark KOALA BABY for “baby lotions and oils; sun-block lotions; non-medicated skin care preparations, namely, lotions; skin oils for cosmetic use; body washes; shampoos; hair conditioners,” as amended, on the ground that the mark is allegedly confusingly similar to the following registrations:

- KOALA-T registered under U.S. Registration No. 2,028,657 for “cosmetics, namely, shampoo conditioners, hand lotions and skin moisturizers” (“Cited Mark 1”);

- KOALA PALS registered under U.S. Registration No. 2,232,391 for “hair shampoo” (“Cited Mark 2”);

- KOALA PALS registered under U.S. Registration No. 3,462,226 for “body washes; hand cleaning preparations” (“Cited Mark 3”).

(collectively the “Cited Marks”). Based on the following analysis and evidence submitted herewith, Applicant respectfully submits that there is no likelihood of confusion between its mark and the Cited Marks and requests that the Examining Attorney withdraw the preliminary refusal and approve Applicant’s mark for publication.

A. The Appearances, Sounds, Connotations, & Commercial Impressions of the Marks Are Different.

Contrary to the Examining Attorney’s position that Applicant’s mark and the Cited Marks are confusingly similar based solely on the fact that they contain the word “KOALA,” Applicant respectfully submits that the significant distinctions between Applicant’s mark and the Cited Marks, when properly viewed in their entireties, are more than adequate to distinguish the marks in the eyes and ears of relevant consumers, rendering the subject refusal untenable. See In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 U.S.P.Q. 563, 567 (C.C.P.A. 1973); In re Bigelow, Inc., 199 U.S.P.Q. 38, 40 (T.T.A.B. 1978) (instructing each case to be decided on basis of all relevant factors).

It is well-established that, when assessing likelihood of confusion, even slight differences may be sufficient to distinguish the marks in question. The Wooster Brush Co. v. Prager Brush Co., 221 U.S.P.Q. 316 (T.T.A.B. 1986); The Land-O-Nod Co. v. Peter Paulison, 220 U.S.P.Q. 61 (T.T.A.B. 1983). The case Lever Brothers Co. v. The Barcolene Co. is instructive. There, the Court did not hesitate to find that the “obvious differences” between the marks ALL CLEAR! and ALL, both used in connection with household cleaning products, weighed against a likelihood of confusion. 463 F.2d 1107, 1109, 174 U.S.P.Q. 392, 393 (C.C.P.A. 1972). Similarly, in Colgate-Palmolive Co. v. Carter-Wallace, Inc., the Court found that “[t]he difference in appearance and sound of the marks [PEAK and PEAK PERIOD] is too obvious to render detailed discussion necessary. In their entireties, they neither look nor sound alike.” 432 F.2d 1400, 1402, 167 U.S.P.Q. 529, 530 (C.C.P.A. 1970); see also In re Hearst Corp., 982 F.2d 493 (Fed. Cir. 1992) (finding no likelihood of confusion between use of VARGAS and VARGA GIRL on calendars); USA Network v. Gannett Co., 584 F. Supp. 195, 223 U.S.P.Q. 678, 681 (D. Colo. 1984) (finding no similarity in appearance, pronunciation, verbal translation, or suggestion of USA CABLE NETWORK and KUSA); Travelhost, Inc. v. Welcome Host of America, Inc., 1996 T.T.A.B. LEXIS 285, at *4, *9 (T.T.A.B. 1996) (finding no likelihood of confusion where TRAVEL HOST and WELCOME HOST conjured different connotations, sounds, appearances, commercial impressions).

In addition, “[i]t is axiomatic that a mark should not be dissected and considered piecemeal; rather, it must be considered as a whole in determining likelihood of confusion.” Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 1007, 212 U.S.P.Q. 233, 234 (C.C.P.A. 1981); see also In re Nat’l Data Corp., 753 F.2d 1056, 1058, 224 U.S.P.Q. 749, 751 (Fed. Cir. 1985) (emphasizing that a likelihood of confusion analysis “cannot be predicated on a dissection of a mark, that is, on only part of a mark” and that “the ultimate conclusion rests on consideration of the marks in their entireties”); Tektronix, Inc. v. Daktronics, Inc., 534 F.2d 915, 916-17, 189 U.S.P.Q. 693, 695 (C.C.P.A. 1976) (finding no likelihood of confusion between marks when viewed in their entireties); In re Rocktron Corp., 1999 T.T.A.B. LEXIS 504, at *2-*3 (T.T.A.B. Aug. 31, 1999) (instructing marks to be considered in their entireties and not side by side). No feature of a mark is ignored simply because it is considered to be less dominant.

In this case, contrary to the Examining Attorney’s position, the significant distinctions between Applicant’s mark and the Cited Marks, when properly viewed in their entireties with respect to appearance, sound, meaning, and overall commercial impression, make clear that a finding of likelihood of confusion cannot stand.

Applicant’s mark KOALA BABY and the Cited Marks are comprised of vastly dissimilar components, resulting in entirely distinct appearances, sounds, and commercial impressions. As noted above, the Examining Attorney improperly concludes that the marks are confusingly similar based on the mere fact that Applicant’s mark and the Cited Marks all contain the word “KOALA.” On the contrary, any similarity between Applicant’s mark and the Cited Marks is vastly overshadowed by the appreciable differences in the appearances and commercial impressions of the marks in their entireties.

Applicant’s mark and the Cited Marks contain only one common word – KOALA. Although the marks do indeed share the word “KOALA,” Applicant’s mark contains an additional component not present in the Cited Marks, and each of the Cited Marks contains additional components not present in Applicant’s Mark. In addition to the word “KOALA,” Applicant’s mark contains a second word – “BABY” – not present in any of the Cited Marks. Furthermore, with respect to Reg. No. 2,028,657 for KOALA-T, the mark is comprised of a single, apparently fanciful word – KOALA-T – the initial five letters of which, if improperly separated from the last two characters “-” and “T,” happen to spell the word “KOALA.” Nevertheless, the mark is KOALA-T, not “KOALA -T,” rendering it considerably different in appearance and commercial impression from Applicant’s mark. Finally, the KOALA PALS marks, Cited Mark 2 and Cited Mark 3, each contain the distinctive word “PALS.” These literal differences alone render Applicant’s mark, when viewed as a whole, easily recognizable and distinguishable from the Cited Marks.

Furthermore, Applicant’s mark generates a different sound, emphasis, and cadence than the Cited Marks. It is well-established that sound is a vital factor in the likelihood of confusion analysis. Celanese Corp. v. du Pont de Nemours & Co., 154 F.2d 143, 145 (C.C.P.A. 1946); Colgate-Palmolive Co., 432 F.2d at 1402; AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 351-52 (9th Cir. 1979). As stated, the word “KOALA” in Applicant’s mark precedes the word “BABY,” not present in any of the Cited Marks, while “KOALA” is followed by “-T,” “PALS,” and “PALS” in Cited Mark 1, Cited Mark 2, and Cited Mark 3, respectively. In addition, the words “KOALA-T” and “KOALA PALS” create a distinct sound from that of Applicant’s mark. Consequently, the sounds generated by Applicant’s mark and the Cited Marks are distinctive and easily distinguishable. Sleekcraft, 599 F.2d at 352.

Moreover, Applicant’s mark and the Cited Marks convey entirely different meanings, further contributing to their distinct commercial impressions and diminishing any possibility of confusion. The use of the term “BABY” in Applicant’s mark in addition to the term “KOALA” creates a completely different meaning and commercial impression than the Cited Marks. The use of “KOALA-T” in Cited Mark 1 is a double entendre for the word “QUALITY” and a reference to “t-shirts,” which creates an entirely different meaning and commercial impression than Applicant’s mark. Similarly, the inclusion of the term “PALS” after “KOALA” in Cited Mark 2 and Cited Mark 3, which does not appear in Applicant’s mark, significantly alters the meaning and commercial impression of Cited Mark 2 and Cited Mark 3. Consequently, Applicant’s mark carries a wholly distinct connotation and conveys an appreciably different commercial impression than those of the Cited Marks.

In sum, there is no doubt that the marks, when viewed in their entireties, contain more than recognizable aesthetic and aural differences sufficient to create significantly distinct commercial impressions, thereby distinguishing Applicant’s mark from the Cited Marks. Such appreciable distinctions between appearances, sounds, and commercial impressions undoubtedly reinforce the conclusion that the marks are not likely to be confused in the minds of relevant consumers. See id.

Applicant’s position that the overall commercial impressions of its mark and the Cited Marks are different is further supported by the concurrent existence of several other “KOALA” marks registered on the Principal Register for identical or related goods, including the three (3) Cited Marks cited by the Examining Attorney in the present Office Action as confusingly similar to Applicant’s mark, as well as the eleven (11) registrations owned by Applicant itself. Details regarding Applicant’s “KOALA” registrations are attached hereto as Exhibit A. The Examining Attorney’s argument that the “KOALA” portion of Applicant’s mark and the Cited Marks is dominant contradicts her reliance on the Cited Marks. Indeed, it is essential that the marks not be dissected and must be considered as a whole when determining likelihood of confusion. The Examining Attorney improperly dissects Applicant’s mark and claims “KOALA” is the dominant portion; however, Applicant reiterates that there is no dominant portion of the mark – the mark is “KOALA BABY.” The mark works as a whole, with "KOALA" and "BABY" functioning together as a single unit, clearly distinct from KOALA-T and KOALA PALS and the commercial impressions thereof. The fact that all of the Cited Marks and Applicant’s marks were permitted registration on the Principal Register concurrently supports Applicant’s argument that the subject “KOALA” mark – KOALA BABY – can coexist with the Cited Marks without resulting in consumer confusion.

Moreover, to the extent that any confusion arises over the use of the term “KOALA” in connection with consumer goods, relevant consumers likely would associate the mark with Applicant in light of the fact that Applicant has enjoyed longstanding protection of its KOALA BABY mark for a variety of consumer goods for babies and infants. Nevertheless, as noted above, Applicant’s mark and the Cited Marks can coexist (and, in fact, have coexisted in some cases for more than 30 years^[1]) without giving rise to confusion. This factor in the likelihood of confusion analysis therefore weighs decidedly in Applicant’s favor.

Finally, Applicant respectfully requests that the Examining Attorney withdraw the likelihood of confusion refusal in order to be consistent with both law and the PTO’s previous treatment of the aforementioned “KOALA” marks. Indeed, Applicant’s prior registrations of its KOALA BABY mark did not prevent registration of the very Cited Marks that form the basis of the subject 2(d) refusal, despite Applicant’s mark itself being similar or identical to its prior existing registrations (namely, KOALA BABY) and the applied-for goods in the subject application being highly similar to the goods and services in Applicant’s prior KOALA BABY and other KOALA-formative registrations.

First, with respect to Cited Mark 1, although any possibility of confusion is obviated by the significant differences in Registrant’s mark and Applicant’s mark as demonstrated above, it bears emphasizing that Applicant is the owner of U.S. Trademark Registration No. 2,180,961 for the mark KOALA BABY, registered in connection with Class 25 goods; U.S. Trademark Registration No. 2,241,678 for the mark KOALA KIDS, registered in connection with Class 25 goods; and U.S. Trademark Registration No. 1,584,763, registered in connection with Class 25 goods. These applications were filed on September 20, 1995, October 5, 1994, and September 12, 1988, respectively, well before Registrant filed its application for KOALA-T on December 13, 1995. The fact that KOALA-T registered in connection with Class 25 goods demonstrates that the PTO did not consider the mark to be confusingly similar to Applicant’s earlier filed marks for KOALA BABY, KOALA KIDS, and KOALA KIDS!. Accordingly, if KOALA-T for Class 25 goods is not confusingly similar to KOALA BABY, KOALA KIDS, and KOALA KIDS! for Class 25 goods, surely the mark KOALA BABY in Class 3 is not confusingly similar to the mark KOALA-T in Class 3. Insofar as the Examining Attorney’s position turns on the fact that Applicant’s mark and the Cited Marks each contain the word “KOALA,” that is not enough to result in a likelihood of confusion. See generally In re Electrolyte Laboratories, Inc., 929 F.2d 645, 647 (Fed. Cir. 1990) (K+ and K+EFF not likely to be confused).

In view of the foregoing and in order to maintain consistent treatment between Applicant’s mark and the Cited Marks, Applicant respectfully requests that the Examining Attorney withdraw the preliminary refusal and pass Applicant’s mark on to publication.

B. The Extent of Potential Confusion is De Minimis.

Finally, where the scope and extent of any potential confusion is de minimis, as opposed to substantial, there can be no support for a refusal pursuant to Section 2(d) of the Lanham Act. See In re E.I. du Pont, 177 U.S.P.Q. at 567. Accordingly, Applicant respectfully submits that where, as here, Applicant’s mark and the Cited Mark differ significantly in appearance, sound, and connotation and convey entirely distinct commercial impressions, and directly analogous marks coexist on the Register, including several registrations owned by Applicant, there can be little doubt that any potential confusion is de minimis, much less likely. Indeed, as the foregoing analysis demonstrates, consumers are simply not likely to believe that Applicant’s and Registrants’ goods emanate from the same source. All of the aforementioned distinctions between Applicant’s mark and the Cited Marks necessitate a finding that the extent of potential confusion is absolutely and unequivocally de minimis. The mere possibility of confusion is simply too remote to justify a Section 2(d) refusal.

Accordingly, because there is no likelihood of confusion between Applicant’s mark and the Cited Marks, Applicant respectfully requests that the Examining Attorney withdraw the refusal and pass Applicant’s mark on to publication.

IV. CONCLUSION

Whereas Applicant has satisfied the concerns and complied with the requirements of the Examining Attorney, Applicant respectfully requests that the likelihood of confusion refusal be withdrawn, that the disclaimer of “BABY” and the amended identification of goods be made of record, and that Applicant’s mark be approved for publication.

EVIDENCE
Evidence in the nature of printouts of status and registration certificates from TSDR for Applicant's other KOALA registrations has been attached.
Original PDF file:
evi_38982204-20200323175612930844_._KOALA_BABY_-_Exhibits.pdf
Converted PDF file(s) ( 112 pages)
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CLASSIFICATION AND LISTING OF GOODS/SERVICES
Applicant proposes to amend the following:
Current: Class 003 for baby lotions and oils; sunblock; skincare lotion and oils; body washes; shampoos; conditioners
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: baby lotions and oils; sunblock; sun-block lotions; skincare lotion and oils; non-medicated skin care preparations, namely, lotions; skin oils for cosmetic use; body washes; conditioners; shampoos; hair conditionersClass 003 for baby lotions and oils; sun-block lotions; non-medicated skin care preparations, namely, lotions; skin oils for cosmetic use; body washes; shampoos; hair conditioners
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: TRU Kids Inc., a corporation of Delaware, having an address of

            First Floor      5 Wood Hollow Road
      Parsippany, New Jersey 07054
      United States

Proposed: TRU Kids Inc., a corporation of Delaware, having an address of
      First Floor
      5 Wood Hollow Road
      Parsippany, New Jersey 07054
      United States
      Email Address: falcone@blankrome.com

The owner's/holder's current attorney information: Megan E. Spitz. Megan E. Spitz of BLANK ROME LLP, is located at

      8TH FLOOR
      ONE LOGAN SQUARE
      PHILADELPHIA, Pennsylvania 19103
      United States
The docket/reference number is 119590-00109.
      The phone number is 215-569-5745.
      The fax number is 215-832-5745.
      The email address is spitz@blankrome.com

The owner's/holder's proposed attorney information: Megan E. Spitz. Other appointed attorneys are Timothy D. Pecsenye, David M. Perry, Bruce D. George, Lisa Casey Spaniel, Zachary A. Aria, Matthew A. Homyk, Bradford C. Craig, Shaun J. Bockert, Thomas H. Kelly, Jillian Taylor, Samar Aryani-Sabet and Blake D. Fink. Megan E. Spitz of BLANK ROME 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

      8TH FLOOR
      ONE LOGAN SQUARE
      PHILADELPHIA, Pennsylvania 19103
      United States
The docket/reference number is 119590-00109.
      The phone number is 215-569-5745.
      The fax number is 215-832-5745.
      The email address is spitz@blankrome.com

Megan E. Spitz 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):
      MEGAN E. SPITZ
      PRIMARY EMAIL FOR CORRESPONDENCE: spitz@blankrome.com
      SECONDARY EMAIL ADDRESS(ES) (COURTESY COPIES): bcraig@blankrome.com

The docket/reference number is 119590-00109.
Correspondence Information (proposed):
      Megan E. Spitz
      PRIMARY EMAIL FOR CORRESPONDENCE: spitz@blankrome.com
      SECONDARY EMAIL ADDRESS(ES) (COURTESY COPIES): bcraig@blankrome.com; bfink@blankrome.com

The docket/reference number is 119590-00109.

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
Disclaimer
No claim is made to the exclusive right to use BABY apart from the mark as shown.


SIGNATURE(S)
Response Signature
Signature: /Megan E. Spitz/     Date: 03/23/2020
Signatory's Name: Megan E. Spitz
Signatory's Position: Attorney of record, PA bar member

Signatory's Phone Number: 215-569-5745

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:    MEGAN E. SPITZ
   BLANK ROME LLP
   8TH FLOOR
   ONE LOGAN SQUARE
   PHILADELPHIA, Pennsylvania 19103
Mailing Address:    Megan E. Spitz
   BLANK ROME LLP
   8TH FLOOR
   ONE LOGAN SQUARE
   PHILADELPHIA, Pennsylvania 19103
        
Serial Number: 88488273
Internet Transmission Date: Mon Mar 23 18:15:30 ET 2020
TEAS Stamp: USPTO/ROA-XX.XX.XXX.X-202003231815305051
94-88488273-710bf21e32b25d5dcef0f33a8bdc
4760c5bb3783cb6aeda551b4819b04c3ed46-N/A
-N/A-20200323175612930844