TEAS Response to Suspension Inquiry

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 1822 (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 1822 (Rev 10/2011)

OMB No. 0651-0050 (Exp 09/20/2020)

Response to Suspension Inquiry or Letter of Suspension

To the Commissioner for Trademarks:

Application serial no. 88550448 ALLSWELL(Standard Characters, see http://uspto.report/TM/88550448/mark.png) has been amended as follows:
PENDING SERIAL NUMBER(S)
Serial number(s) 87590668 should not be used as a citation(s) under Section 2(d), in the event that said serial number(s) mature(s) into a registration(s). The applicant hereby requests removal of this application from suspension, based on the following arguments. If the examining attorney is not persuaded by these arguments, the applicant hereby requests that this application be returned to suspended status, awaiting ultimate disposition of the referenced serial number(s).
Serial number(s) 87590668 should not be used as a citation(s) under Section 2(d) because the applicant herein claims ownership of the referenced serial number(s), supported by a declaration. The applicant hereby requests removal of this application from suspension. If that the examining attorney is not persuaded by this ownership claim, the applicant hereby requests that this application be returned to suspended status, awaiting ultimate disposition of the referenced serial number(s).

ARGUMENT(S)
The Examiner has identified pending U.S. Application Ser. No. 87590668 as a potential bar to registration of Applicant's Mark. The Examiner states that if Ser. No. 87590668 registers, the Applicant's Mark may be refused under Trademark Act Section 2(d) due to a likelihood of confusion. However, in this instance there is no likelihood of confusion because consumers who encounter goods bearing the mark in Ser. No. 87590668 and goods bearing the Applicant's Mark would believe they emanate from a single source. In some instances, "the close relationship between related companies will obviate any likelihood of confusion in the public mind because the related companies constitute a single source." TMEP 1201.07. Furthermore, "if the applicant represents that either the applicant or the registrant owns all of the other entity, and there is no contradictory evidence, then the examining attorney should conclude that there is unity of control, a single source, and no likelihood of confusion." TMEP Section 1201.07(b)(i). Here, Wal-Mart Stores, Inc., filed Ser. No. 87590668 on August 30, 2017. On January 15, 2018, Walmart Apollo, LLC, was formed, with Wal-Mart Stores, Inc., as the sole owner. On February 1, 2018, Wal- Mart Stores, Inc., changed its name from Wal-Mart Stores, Inc., to Walmart Inc. without affecting any of the entity's corporate structure or ongoing operations. On July 30, 2019, Walmart Apollo, LLC, filed the subject Application. Since Wal-Mart Stores, Inc., (now known as Walmart Inc.) is the sole owner of the Applicant, consumers who encounter goods bearing the mark in Ser. No. 87590668 and goods bearing the Applicant's Mark would believe they emanate from a single source. Accordingly, there is no likelihood of confusion.


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 amendment to allege use (AAU) unsigned, all statements in the application or AAU and this submission based on the signatory's own knowledge are true, and all statements in the application or AAU and this submission made on information and belief are believed to be true.

STATEMENTS FOR UNSIGNED SECTION 1(a) APPLICATION/AAU: If the applicant filed an unsigned application under 15 U.S.C. §1051(a) or AAU 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 application or AAU filing date; the original specimen(s), if applicable, shows the mark in use in commerce as of the filing date of the application or AAU on or in connection with the goods/services/collective membership organization in the application or AAU; for a collective trademark, collective service mark, collective membership mark, or certification mark application, the applicant is exercising legitimate control over the use of the mark in commerce and was exercising legitimate control over use of the mark in commerce as of the application or AAU filing date; 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: for a trademark or service mark application, the applicant believes 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; the signatory is properly authorized to execute the declaration on behalf of the applicant; 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 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: /W. LaNelle Owens/    Date: 12/16/2019
Signatory's Name: W. LaNelle Owens
Signatory's Position: Attorney of Record, Colorado Bar

Response Suspension Inquiry Signature
Signature: /W. LaNelle Owens/     Date: 12/16/2019
Signatory's Name: W. LaNelle Owens
Signatory's Position: Senior Associate Counsel

        
Serial Number: 88550448
Internet Transmission Date: Mon Dec 16 17:38:36 EST 2019
TEAS Stamp: USPTO/RSI-XXX.XXX.XXX.XXX-20191216173836
617623-88550448-7001b25a135b393e1dfb8f59
efcb5c64bcd509cd6d03fd697061a2bfd6ddc897
b-N/A-N/A-20191216154631952884