To: | Herbal Brands, Inc. (docketing@goodhue.com) |
Subject: | U.S. Trademark Application Serial No. 88529844 - HERBAL BRANDS - N/A |
Sent: | October 23, 2019 07:44:32 AM |
Sent As: | ecom109@uspto.gov |
Attachments: | Attachment - 1 Attachment - 2 Attachment - 3 |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88529844
Mark: HERBAL BRANDS
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Correspondence Address: GOODHUE, COLEMAN & OWENS, P.C. 650 S. PRAIRIE DR. SUITE 125 PMB209
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Applicant: Herbal Brands, Inc.
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Reference/Docket No. N/A
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: October 23, 2019
The referenced application has been reviewed by the assigned trademark examining attorney. Applicant must respond timely and completely to the issues below. 15 U.S.C. §1062(b); 37 C.F.R. §§2.62(a), 2.65(a); TMEP §§711, 718.03.
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
Applicant has applied to register its mark in connection with the following goods:
Class 3: Cosmetic preparations; cosmetic hand cream, skin moisturizers; skin preparations, namely, moisturizers, salves, creams, lotions, balms, ointments, sprays, serums, powders; essential oils for flavoring beverages; baby powders; essential oils; deodorants for human beings
Class 5: dietary supplements; topical analgesics and tinctures; vitamin preparations; nutritional supplements; Nutraceuticals for use as a dietary supplement; non-medicated and medicated creams, lotions, salves, sprays, powder, balms, intments; medicinal creams for skin care; medicinal drinks; homeopathic supplements; Shoe deodorizers
Class 30: tea based beverages; Flavorings and seasonings, other than essential oils, for food and beverages
Class 32: Concentrates, syrups or powders for making non-alcoholic beverages; Health drinks containing nutritional supplements
“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).
The wording “HERBAL” means “belonging to, consisting of, or made from herbs.” See attached evidence from The Oxford English Dictionary.
As applied to applicant’s goods, the wording “herbal” describes an ingredient or characteristic of the applicant’s goods. Specifically, applicant offers various products which contain herbs as an ingredient.
The wording “BRANDS” is defined as “a trademark.” See attached. Therefore, this wording is non-source identifying.
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 do not create a unique, incongruous, or nondescriptive meaning in relation to the goods. Specifically, applicants branded goods contain herbal ingredients and thus “HERBAL BRANDS” merely describes the goods offered under applicant’s trademark.
Accordingly, the proposed mark is merely descriptive, and registration is refused on the Principal Register under Section 2(e)(1).
Although applicant’s mark has been refused registration, applicant may respond to the refusal by submitting evidence and arguments in support of registration.
SUPPLEMENTAL REGISTER – ADVISORY
If applicant files an acceptable allegation of use and also amends to the Supplemental Register, the application effective filing date will be the date applicant met the minimum filing requirements under 37 C.F.R. §2.76(c) for an amendment to allege use. TMEP §§816.02, 1102.03; see 37 C.F.R. §2.75(b). In addition, the undersigned trademark examining attorney will conduct a new search of the USPTO records for conflicting marks based on the later application filing date. TMEP §§206.01, 1102.03.
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
Annie M Noble
/Annie M. Noble/
Trademark Examining Attorney
Law Office 109
(571) 272-3272
annie.noble@uspto.gov
RESPONSE GUIDANCE