United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88504424
Mark: ESMART
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Correspondence Address: |
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Applicant: Supply Chain Resources, LLC
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Reference/Docket No. SUPP-0001
Correspondence Email Address: |
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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 25, 2019
SEARCH OF OFFICE’S DATABASE OF MARKS
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).
SECTION 2(e)(1) REFUSAL - MERELY DESCRIPTIVE
When a mark consists of the “e” prefix coupled with a descriptive word or term for electronic goods and/or services, then the entire mark may be considered merely descriptive under Trademark Act Section 2(e)(1). See In re SPX Corp., 63 USPQ2d 1592 (TTAB 2002) (holding E-AUTODIAGNOSTICS merely descriptive of an electronic engine analysis system comprised of a hand-held computer and related computer software); In re Styleclick.com Inc., 57 USPQ2d 1445 (TTAB 2000) (holding E FASHION merely descriptive of software for consumer use in shopping via a global computer network and of electronic retailing services); TMEP §1209.03(d).
Further, the term “smart” has been held merely descriptive of devices that employ automated technology. See In re Cannon Safe, Inc., 116 USPQ2d 1348, 1350 (TTAB 2015) (holding SMART SERIES merely descriptive of metal safes specifically designed to store firearms); In re Cryomedical Scis. Inc., 32 USPQ2d 1377, 1378 (TTAB 1994) (holding SMARTPROBE merely descriptive of disposable cryosurgical probes); see also In re Tower Tech, Inc., 64 USPQ2d 1314, 1317-18 (TTAB 2002) (holding SMARTTOWER merely descriptive of commercial and industrial cooling towers and accessories therefor, sold as a unit).
Applicant is seeking registration for the following goods: “massage apparatus and instruments; massage chairs,” in International Class 10 in connection with the mark “ESMART”. Here, the applied-for mark is merely descriptive of a feature of applicant’s goods.
According to Wikipedia, “smart products” are a category of hybrid products that recognize and process situational contexts, tailor some functionality of said products to buyers/consumers specific needs, generally change according to buyer/consumer responses/input, and are often pro-active in anticipating certain consumer needs and the like. Please see attached evidence, also available at http://en.wikipedia.org/wiki/Smart_products. “Smart” massage chairs, i.e., massage chairs that feature some sort of technology to fit and/or personalize consumer needs, are a common type of smart product. Please see attached evidence from Smart Massage Chairs, Infinity and eMassageChair, also available at http://smartmassagechair.com/, http://smartmassagechair.com/the-smart-massage-chair/, http://infinitymassagechairs.com/massage-chairs/details/smart-chair and http://www.emassagechair.com/eblog/top-ten-best-selling-massage-chairs-for-2018/.
Further, the attached evidence shows that the letter “e” used as a prefix has become commonly recognized as a designation for goods and/or services that are electronic in nature or are sold or provided electronically. Specifically, the evidence consists of evidence from The American Heritage Dictionary and TheFreeDictionary by Farlex, which shows the e- prefix often stands for “electronic” and when applied to various words, indicates that a product is, or features some portion, that is electronic in nature. Please see attached evidence, also available at http://www.ahdictionary.com/word/search.html?q=e- and http://www.thefreedictionary.com/e-. In addition to the evidence above, the trademark examining attorney submits that electronic massage chairs are a common category of massage chairs and related products. Please see additional attached evidence from Incorporate Massage, Alibaba.com and Pure Bliss Day Spa, also available at http://www.incorporatemassage.com/blog/pros-cons-massage-therapists-vs.-massage-chairs, http://www.alibaba.com/showroom/electronic-massage-chairs.html and http://purebliss-massage.com/. Applicant provides massage apparatus, instruments and chairs. Please reference applicant’s application record.
Therefore, the applied-for mark “ESMART” is merely descriptive of a feature of applicant’s goods because applicant provides a variety of electronic massage apparatus, instruments and chairs that presumably feature “smart” type functionality.
Based on the foregoing, applicant's mark is merely descriptive of the goods identified in its application and the application is refused under Section 2(e)(1) of the Trademark Act.
SUPPLEMENTAL REGISTER - Advisory
The applied-for mark has been refused registration on the Principal Register. Applicant may respond to the refusal by submitting evidence and arguments in support of registration and/or by amending the application to seek registration on the Supplemental Register. See 15 U.S.C. §1091; 37 C.F.R. §§2.47, 2.75(a); TMEP §§801.02(b), 816. Amending to the Supplemental Register does not preclude applicant from submitting evidence and arguments against the refusal(s). TMEP §816.04.
RESPONSE GUIDELINES
Please call or email the assigned trademark examining attorney with questions about this Office action. Although the trademark examining attorney cannot provide legal advice or statements about applicant’s rights, the trademark examining attorney can provide applicant with additional explanation about the refusal(s) and/or requirement(s) in this Office action. See TMEP §§705.02, 709.06. Although the USPTO does not accept emails as responses to Office actions, emails can be used for informal communications and will be included in the application record. See 37 C.F.R. §§2.62(c), 2.191; TMEP §§304.01-.02, 709.04-.05.
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.
How to respond. Click to file a response to this nonfinal Office action
/Erin Z. Dyer/
Erin Zaskoda Dyer
Trademark Examining Attorney
Law Office 103
(571) 272-9740
erin.zaskoda@uspto.gov (preferred)
RESPONSE GUIDANCE