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. 88519586 TRAVEL EVERY DAY(Standard Characters, see http://uspto.report/TM/88519586/mark.png) has been amended as follows:

CLASSIFICATION AND LISTING OF GOODS/SERVICES

Applicant proposes to amend the following class of goods/services in the application:
Current: Class 018 for Back packs; Backpacks; Backpacks; Backpacks incorporating jackets; Backpacks with rolling wheels; Backpacks, book bags, sports bags, bum bags, wallets and handbags; Baby backpacks; Military duffle bags, garment bags for travel, tote bags, shoulder bags and backpacks; Schoolchildren's backpacks; Small backpacks
Original Filing Basis:
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 07/01/2019 and first used in commerce at least as early as 07/01/2019 , and is now in use in such commerce.

Proposed:
Tracked Text Description: Back packs; Backpacks; Backpacks; Backpacks incorporating jackets; Backpacks with rolling wheels; Backpacks, book bags, sports bags, bum bags, wallets and handbags; Baby backpacks; Military duffle bags, garment bags for travel, tote bags, shoulder bags and backpacks; Schoolchildren's backpacks; Small backpacksClass 018 for Back packs; Backpacks; Backpacks incorporating jackets; Backpacks with rolling wheels; Backpacks, book bags, sports bags, bum bags, wallets and handbags; Baby backpacks; Military duffle bags, garment bags for travel, tote bags, shoulder bags and backpacks; Schoolchildren's backpacks; Small backpacks
Deleted Filing Basis: 1(a)
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.

ADDITIONAL STATEMENTS
Miscellaneous Statement
The Office Action has indicated that "applicant must disclaim the wording 'TRAVEL' because it is not inherently distinctive and is at best merely descriptive of a purpose or use of applicant's goods." However, Applicant respectfully disagrees for the following reasons. Viewed as a whole, the phrase "TRAVEL EVERY DAY" is a unitary phrase or slogan which creates a single and distinct commercial impression. See TMEP 1213.05; and Dena Corp., 950 F.2d at 1561, 21 USPQ2d at 1052. Thus, no disclaimer of an element, whether descriptive, generic, or otherwise, is required. The effect of the mark's phrase is a slogan which encourages the consumer to take part in a particular lifestyle of exploring, being active, and experiencing every typical day as if traveling on a trip or vacation. This is similar to other unitary slogans, such as "Just Do It" by Nike, with an "attention getting nature" that reference a particular lifestyle. TMEP 1213.05(b)(i). Thus, Applicant's mark is a slogan that should be "treated as unitary matter and must not be broken up for purposes of requiring a disclaimer." Id. The grammatical structure of the phrase further supports the unitary nature of Applicant's mark. See TMEP 1213.05(b)(ii)(A) ("The presence of a verb may indicate that a mark or portion of a mark is a unitary phrase or slogan by linking a subject and an object, or by referring to something that is ongoing, thereby creating continuity of thought or expression."). Here, the term TRAVEL is being used as a verb, and the phrase EVERY DAY is an adverb modifying the verb TRAVEL. When linked with the phrase EVERY DAY, the verb TRAVEL renders the mark as a unitary phrase that creates the commercial impression of actively living and exploring, and indicates an ongoing activity being performed EVERY DAY, thereby "unifying the terms so that they function as a unit." TMEP 1213.05(b)(ii)(A). Other marks with similar effect have been registered or allowed including Registration No. 5156079 (BUILD EVERY DAY) for "Real estate construction services, namely, commercial building construction," Registration No. 5356005 (DESIGN EVERY DAY) for "Architectural design, Interior design, Graphic Design," and Application No. 87766458 (RIDE EVERY DAY) for "footwear for cycling; apparel for cycling, namely, gloves, socks, caps, jerseys, shorts, bib shorts." While the terms used in the aforementioned marks relate to the purpose or use of the respective goods or services, the unitary nature of the slogans and grammar of such marks do not necessitate a disclaimer. As such, Applicant respectfully requests that the disclaimer requirement be withdrawn.


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: /Clifford S. Chang/      Date: 11/15/2019
Signatory's Name: Clifford S. Chang
Signatory's Position: Attorney of Record, CA Bar Member
Signatory's Phone Number: 510-900-9501


Response Signature
Signature: /Clifford S. Chang/     Date: 11/15/2019
Signatory's Name: Clifford S. Chang
Signatory's Position: Attorney of Record, CA Bar Member

Signatory's Phone Number: 510-900-9501

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.

        
Serial Number: 88519586
Internet Transmission Date: Fri Nov 15 13:55:24 EST 2019
TEAS Stamp: USPTO/ROA-XX.XXX.XXX.XX-2019111513552421
0437-88519586-700f6895c5f3a6a3ccb6ac7eec
d26c31abf39fc9b4d15d50a9f8185f6bdf452f7-
N/A-N/A-20191115134716981965