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. 88554315 HAWTHORN(Standard Characters, see http://uspto.report/TM/88554315/mark.png) has been amended as follows:

ARGUMENT(S)
In response to the substantive refusal(s), please note the following:

Applicant thanks the Trademark Examining Attorney for the thorough Office Action dated October 21, 2019. In that Action, the Trademark Examining Attorney refused registration based on the allegation that the mark is primarily, merely descriptive of the goods for which registration is sought. Applicant respectfully disagrees with the refusal, but has nevertheless, in the remainder of this Action, amended the application under Section 2(f) of the Trademark Act on the basis that the mark has acquired distinctiveness in the trade. The HAWTHORN mark has become distinctive of the goods through Applicant's substantially exclusive and continuous use of the mark in commerce that the U.S. Congress may lawfully regulate for at least the five years immediately before the date of this statement. In fact, and more specifically, Applicant and its predecessors-in-interest have used the mark in commerce in connection with the goods for nearly 21 years now. Such a lengthy amount of time in commerce typically results in any mark being easily recognized by its consumer base. It is also evidence that the mark has staying power and is distinctive in its trade. The particular goods in question are sold through the normal pharmacy channels, most patients have a prescription for them, and physicians all know and understand the goods well.

The applicant's current attorney information: Andrew N. Spivak. Andrew N. Spivak of MOSAIC LEGAL GROUP, PLLC, is located at

      5185 MACARTHUR BOULEVARD, NW, SUITE 350
      WASHINGTON, District of Columbia 20016-3341
      US

The phone number is 202-600-2270.

The fax number is (202) 600-2261.

The email address is aspivak@mosaiclegalgroup.com

The applicants proposed attorney information: Andrew N. Spivak. Other appointed attorneys are M Scott Brown and Adam D. Resnick. Andrew N. Spivak of MOSAIC LEGAL GROUP, PLLC, is a member of the XX bar, admitted to the bar in XXXX, bar membership no. XXX, and the attorney(s) is located at

      5185 MACARTHUR BOULEVARD, NW, SUITE 350
      WASHINGTON, District of Columbia 20016-3341
      United States

The phone number is 202-600-2270.

The fax number is (202) 600-2261.

The email address is aspivak@mosaiclegalgroup.com

Andrew N. Spivak submitted the following statement: The attorney of record is an active member in good standing of the bar of the highest court of a U.S. state, the District of Columbia, or any U.S. Commonwealth or territory.
The applicant's current correspondence information: ANDREW N. SPIVAK. ANDREW N. SPIVAK of MOSAIC LEGAL GROUP, PLLC, is located at

      5185 MACARTHUR BOULEVARD, NW, SUITE 350
      WASHINGTON, District of Columbia 20016-3341
      US

The phone number is 202-600-2270.

The fax number is (202) 600-2261.

The email address is aspivak@mosaiclegalgroup.com

The applicants proposed correspondence information: Andrew N. Spivak. Andrew N. Spivak of MOSAIC LEGAL GROUP, PLLC, is located at

      5185 MACARTHUR BOULEVARD, NW, SUITE 350
      WASHINGTON, District of Columbia 20016-3341
      United States

The phone number is 202-600-2270.

The fax number is (202) 600-2261.

The email address is aspivak@mosaiclegalgroup.com

ADDITIONAL STATEMENTS
Miscellaneous Statement
In response to the Trademark Examining Attorney's additional request for factual information regarding Applicant's products, Applicant notes that, depending on the specific product, its products generally contain Carbonyl iron, Vitamin C, Vitamin B12, and Folic Acid.


SECTION 2(f) Claim of Acquired Distinctiveness, based on Five or More Years' Use
The mark has become distinctive of the goods/services through the applicant's substantially exclusive and continuous use of the mark in commerce that the U.S. Congress may lawfully regulate for at least the five years immediately before the date of this statement.


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: /Andrew N. Spivak/      Date: 10/22/2019
Signatory's Name: Andrew N. Spivak
Signatory's Position: Attorney of Record
Signatory's Phone Number: (202) 600-2270


Response Signature
Signature: /Andrew N. Spivak/     Date: 10/22/2019
Signatory's Name: Andrew N. Spivak
Signatory's Position: Attorney of Record

Signatory's Phone Number: (202) 600-2270

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.

Mailing Address:    ANDREW N. SPIVAK
   MOSAIC LEGAL GROUP, PLLC
   
   5185 MACARTHUR BOULEVARD, NW, SUITE 350
   WASHINGTON, District of Columbia 20016-3341
Mailing Address:    Andrew N. Spivak
   MOSAIC LEGAL GROUP, PLLC
   5185 MACARTHUR BOULEVARD, NW, SUITE 350
   WASHINGTON, District of Columbia 20016-3341
        
Serial Number: 88554315
Internet Transmission Date: Tue Oct 22 22:33:02 EDT 2019
TEAS Stamp: USPTO/ROA-XX.XXX.XXX.XXX-201910222233025
66247-88554315-6108c0e9cdd77039a6ea8157f
278f7b3fcfed405a1f88ed46d582f52ecdfe5daf
-N/A-N/A-20191022222127892420