To: | K&D Latin Food, Inc. (davidharris@att.net) |
Subject: | U.S. Trademark Application Serial No. 88554671 - KERO - N/A |
Sent: | November 03, 2019 07:22:01 PM |
Sent As: | ecom115@uspto.gov |
Attachments: |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88554671
Mark: KERO
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Correspondence Address:
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Applicant: K&D Latin Food, 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: November 03, 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).
AMENDED DESCRIPTION AND/OR COLOR CLAIM REQUIRED
To clarify how black, white and/or gray are being used in the mark, applicant may satisfy one of the following:
(1) If white is a feature of the mark, applicant must amend the color description as suggested, if accurate:
Description: “The mark consists of a child's cartoon smiling face depicted in the color white, dark blue eyes, dark orange freckles, a mouth consisting of a blue outline with a light orange inside coloring, eating KERO in light to dark orange.”
(2) If white is not a feature of the mark, applicant must amend the description to state that black, white, and/or gray represent background, outlining, shading and/or transparent areas and are not part of the mark. The applicant must also amend the color claim to delete the color white. The following color claim and description is suggested, if accurate:
The color(s) light orange, dark orange, and dark blue is/are claimed as a feature of the mark.
“The mark consists of the following: a child's cartoon smiling face, dark blue eyes, dark orange freckles, a mouth consisting of a blue outline with a light orange inside coloring, eating KERO in light to dark orange. The white areas in the mark are not claimed as a feature of the mark, and are intended to show background or transparent areas only. 37 C.F.R. §2.52(b)(1); TMEP §807.07(a)(i), (a)(ii).”
GOODS GENERAL REFUSAL
Registration is refused because the specimen does not show the applied-for mark in use in commerce in International Class(es) 30. Trademark Act Sections 1 and 45, 15 U.S.C. §§1051, 1127; 37 C.F.R. §§2.34(a)(1)(iv), 2.56(a); TMEP §§904, 904.07(a). Specifically, the specimen is an invoice, which does not show use of the mark on the goods or the packaging of the goods.
An application based on Trademark Act Section 1(a) must include a specimen showing the applied-for mark in use in commerce for each international class of goods identified in the application or amendment to allege use. 15 U.S.C. §1051(a)(1); 37 C.F.R. §§2.34(a)(1)(iv), 2.56(a); TMEP §§904, 904.07(a).
Examples of specimens for goods include tags, labels, instruction manuals, containers, photographs that show the mark on the actual goods or packaging, and displays associated with the actual goods at their point of sale. See TMEP §§904.03 et seq. Webpages may also be specimens for goods when they include a picture or textual description of the goods associated with the mark and the means to order the goods. TMEP §904.03(i). However, leaflets, handbills, advertising circulars, and other advertising materials generally are not acceptable specimens for goods. See TMEP §§904.03 et seq.
Applicant may respond to this refusal by satisfying one of the following for each applicable international class:
(1) Submit a different specimen (a verified “substitute” specimen) that (a) was in actual use in commerce at least as early as the filing date of the application or prior to the filing of an amendment to allege use and (b) shows the mark in actual use in commerce for the goods identified in the application or amendment to allege use. A “verified substitute specimen” is a specimen that is accompanied by the following statement made in a signed affidavit or supported by a declaration under 37 C.F.R. §2.20: “The substitute (or new, or originally submitted, if appropriate) specimen(s) was/were in use in commerce at least as early as the filing date of the application or prior to the filing of the amendment to allege use.” The substitute specimen cannot be accepted without this statement.
(2) Amend the filing basis to intent to use under Section 1(b), for which no specimen is required. This option will later necessitate additional fee(s) and filing requirements such as providing a specimen.
For an overview of both response options referenced above and instructions on how to satisfy either option online using the Trademark Electronic Application System (TEAS) form, please go to http://www.gov.uspto.report/trademarks/law/specimen.jsp.
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
/Bridgett G. Smith/
Trademark Examining Attorney
USPTO Law Office 115
(571) 272-9482 (P)/(571) 273-9482(F)
bridgett.smith@uspto.gov
RESPONSE GUIDANCE