To: | TOBII DYNAVOX LLC (docketing@dority-manning.com) |
Subject: | U.S. Trademark Application Serial No. 88503812 - ACCESSIBLE BROWSER - DYN-201-TM |
Sent: | September 29, 2019 11:00:55 AM |
Sent As: | ecom115@uspto.gov |
Attachments: | Attachment - 1 |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88503812
Mark: ACCESSIBLE BROWSER
|
|
Correspondence Address:
|
|
Applicant: TOBII DYNAVOX LLC
|
|
Reference/Docket No. DYN-201-TM
Correspondence Email Address: |
|
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: September 29, 2019
TEAS PLUS OR TEAS REDUCED FEE (TEAS RF) APPLICANTS – TO MAINTAIN LOWER FEE, ADDITIONAL REQUIREMENTS MUST BE MET, INCLUDING SUBMITTING DOCUMENTS ONLINE: Applicants who filed their application online using the lower-fee TEAS Plus or TEAS RF application form must (1) file certain documents online using TEAS, including responses to Office actions (see TMEP §§819.02(b), 820.02(b) for a complete list of these documents); (2) maintain a valid e-mail correspondence address; and (3) agree to receive correspondence from the USPTO by e-mail throughout the prosecution of the application. See 37 C.F.R. §§2.22(b), 2.23(b); TMEP §§819, 820. TEAS Plus or TEAS RF applicants who do not meet these requirements must submit an additional processing fee of $125 per class of goods and/or services. 37 C.F.R. §§2.6(a)(1)(v), 2.22(c), 2.23(c); TMEP §§819.04, 820.04. However, in certain situations, TEAS Plus or TEAS RF applicants may respond to an Office action by authorizing an examiner’s amendment by telephone or e-mail without incurring this additional fee.
The referenced application has been reviewed by the assigned trademark examining attorney. Applicant must respond timely and completely to the issue(s) below. 15 U.S.C. §1062(b); 37 C.F.R. §§2.62(a), 2.65(a); TMEP §§711, 718.03.
The trademark examining attorney has searched the Office’s database of registered and pending marks and has found no conflicting marks that would bar registration under Trademark Act Section 2(d). TMEP §704.02; see 15 U.S.C. §1052(d).
DESCRIPTIVENESS REFUSAL WITH GENERIC ADVISORY
Registration is refused because the applied-for mark merely describes a characteristic of applicant’s goods and/or services. Trademark Act Section 2(e)(1), 15 U.S.C. §1052(e)(1); see TMEP §§1209.01(b), 1209.03 et seq.
A mark is merely descriptive if it describes an ingredient, quality, characteristic, function, feature, purpose, or use of an applicant’s goods and/or services. TMEP §1209.01(b); see, e.g., In re TriVita, Inc., 783 F.3d 872, 874, 114 USPQ2d 1574, 1575 (Fed. Cir. 2015) (quoting In re Oppedahl & Larson LLP, 373 F.3d 1171, 1173, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004)); In re Steelbuilding.com, 415 F.3d 1293, 1297, 75 USPQ2d 1420, 1421 (Fed. Cir. 2005) (citing Estate of P.D. Beckwith, Inc. v. Comm’r of Patents, 252 U.S. 538, 543 (1920)).
The determination of whether a mark is merely descriptive is made in relation to an applicant’s goods and/or services, not in the abstract. DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 1254, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012); In re The Chamber of Commerce of the U.S., 675 F.3d 1297, 1300, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012); TMEP §1209.01(b); see, e.g., In re Polo Int’l Inc., 51 USPQ2d 1061, 1062-63 (TTAB 1999) (finding DOC in DOC-CONTROL would refer to the “documents” managed by applicant’s software rather than the term “doctor” shown in a dictionary definition); In re Digital Research Inc., 4 USPQ2d 1242, 1243-44 (TTAB 1987) (finding CONCURRENT PC-DOS and CONCURRENT DOS merely descriptive of “computer programs recorded on disk” where the relevant trade used the denomination “concurrent” as a descriptor of a particular type of operating system).
“Whether consumers could guess what the product [or service] is from consideration of the mark alone is not the test.” In re Am. Greetings Corp., 226 USPQ 365, 366 (TTAB 1985).
In this case, applicant has applied to register the mark ACCESSIBLE BROWSER in standard character form for use in connection with “a web browser specifically designed to support people accessing it with eye tracking or switches.” The wording WEB ACCESSIBLITY means “ensuring there are no barriers that prevent interaction with, or access to, websites on the World Wide Web. See attached evidence.
Based upon this evidence and the legal standards as set forth above, the examining attorney concludes that the proposed mark ACCESSIBLE BROWSER is merely descriptive of applicant’s goods and/or services. It appears that applicant’s services create an accessible browser on the Internet. Accordingly, the mark is refused registration on the Principal Register under Section 2(e)(1) of the Trademark Act.
Although the examining attorney has refused registration, applicant may respond to the refusal to register by submitting evidence and arguments in support of registration. If applicant chooses to respond to the refusal to register, applicant must also respond to the following informalities.
INFORMALITIES
Identification of Services
Providing a website featuring technology that enables users to access a browser on the Internet with eye tracking or switches, in INT. CLASS 42.
For assistance with identifying and classifying goods and services in trademark applications, please see the USPTO’s online searchable U.S. Acceptable Identification of Goods and Services Manual. See TMEP §1402.04.
Request for Additional Information
Factual information about the services must clearly indicate what the services are and how they are rendered, their salient features, and their prospective customers and channels of trade. Conclusory statements regarding the services will not satisfy this requirement for information.
Failure to comply with a request for information is grounds for refusing registration. In re Harley, 119 USPQ2d 1755, 1757-58 (TTAB 2016); TMEP §814. Merely stating that information about the services is available on applicant’s website is an insufficient response and will not make the relevant information of record. See In re Planalytics, 70 USPQ2d 1453, 1457-58 (TTAB 2004).
TELEPHONE OR E-MAIL FOR CLARIFICATION
How to respond. Click to file a response to this nonfinal Office action
/Alicia Collins Edwards/
Trademark Examining Attorney
United States Patent and Trademark Office
Law Office 115
571-272-9147
alicia.edwards@uspto.gov
RESPONSE GUIDANCE