To: | Retail Exclusive Distribution, Inc. (jb@jonbay.com) |
Subject: | U.S. Trademark Application Serial No. 88580004 - MEDICATED - 1132-45-2 |
Sent: | November 15, 2019 09:01:06 AM |
Sent As: | ecom121@uspto.gov |
Attachments: | Attachment - 1 Attachment - 2 Attachment - 3 Attachment - 4 Attachment - 5 Attachment - 6 Attachment - 7 |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88580004
Mark: MEDICATED
|
|
Correspondence Address:
|
|
Applicant: Retail Exclusive Distribution, Inc.
|
|
Reference/Docket No. 1132-45-2
Correspondence Email Address: |
|
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 15, 2019
SEARCH
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
“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).
In the present case, applicant’s goods are “dietary and nutritional supplements; dietary and nutritional supplements for endurance sports; dietary and nutritional supplements used for weight loss; nutritional supplements in the form of powder; nutritional and dietary supplements formulated for body builders at the elite level for muscle-building and increasing vascularity; nutritional and dietary supplements formulated for pre-workout consumption for workout session energy and focus.”
The attached evidence from Merriam-Webster demonstrates that the wording “MEDICATED” means “to treat (someone or something) with or as if with medicine; to impregnate with a medicinal substance. Therefore, the wording is merely descriptive of applicant’s goods because applicant’s nutritional and dietary supplements are impregnated with medicinal supplements to assist weight loss and muscle growth.
Accordingly, the applied-for mark is merely descriptive of applicant’s goods and/or services and registration is refused under Trademark Act Section 2(e)(1).
Although applicant’s mark has been refused registration, applicant may respond to the refusal(s) by submitting evidence and arguments in support of registration. However, if applicant responds to the refusal(s), applicant must also respond to the requirement(s) set forth below.
ADVISORY: SUPPLEMENTAL REGISTER – INTENT TO USE APPLICATION
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.
INFORMATION ABOUT THE GOODS REQUIRED
(1) Fact sheets, instruction manuals, brochures, advertisements and pertinent screenshots of applicant’s website as it relates to the goods and/or services in the application, including any materials using the terms in the applied-for mark. Merely stating that information about the goods and/or services is available on applicant’s website is insufficient to make the information of record.;
(2) If these materials are unavailable, applicant should submit similar documentation for goods and services of the same type, explaining how its own product or services will differ. If the goods and/or services feature new technology and information regarding competing goods and/or services is not available, applicant must provide a detailed factual description of the goods and/or services. Factual information about the goods must make clear how they operate, salient features, and prospective customers and channels of trade. For services, the factual information must make clear what the services are and how they are rendered, salient features, and prospective customers and channels of trade. Conclusory statements will not satisfy this requirement.; and
(3) Applicant must respond to the following questions:
1. Do applicant’s goods contain medicinal ingredients or supplements?
2. Do applicant’s goods have medicinal healing or treatment features or are applicant’s goods marketed as having these features? If yes, please list and describe the healing or treatment properties.
See 37 C.F.R. §2.61(b); TMEP §§814, 1402.01(e).
Failure to comply with a request for information is grounds for refusing registration. In re Harley, 119 USPQ2d 1755, 1757-58 (TTAB 2016); TMEP §814.
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
For this application to proceed, applicant must explicitly address each refusal and/or requirement in this Office action. For a refusal, applicant may provide written arguments and evidence against the refusal, and may have other response options if specified above. For a requirement, applicant should set forth the changes or statements. Please see “Responding to Office Actions” and the informational video “Response to Office Action” for more information and tips on responding.
Please note that foreign attorneys, other than authorized Canadian attorneys, are not permitted to represent applicants before the USPTO (e.g., file written communications, authorize an amendment to an application, or submit legal arguments in response to a requirement or refusal). See 37 C.F.R. §§2.17(e), 11.14(c), (e); TMEP §602.03-.03(c).
The only attorneys who may practice before the USPTO in trademark matters are as follows:
(1) Attorneys in good standing with a bar of the highest court of any U.S. state, the District of Columbia, Puerto Rico, and other U.S. commonwealths or U.S. territories; and
(2) Canadian agents/attorneys who represent applicants located in Canada and (a) are registered with the USPTO and in good standing as patent agents or (b) have been granted reciprocal recognition by the USPTO.
See 37 C.F.R. §§2.17(a), (e), 11.1, 11.14(a), (c); TMEP §602.
/Tricia L. Brown/
Examining Attorney
Law Office 121
(571) 270-7892
tricia.brown@uspto.gov
RESPONSE GUIDANCE