To: | EVLUTION NUTRITION, LLC (darren@heitnerlegal.com) |
Subject: | U.S. Trademark Application Serial No. 88581553 - STACKED PLANT PROTEIN - N/A |
Sent: | October 18, 2019 11:43:32 AM |
Sent As: | ecom101@uspto.gov |
Attachments: |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88581553
Mark: STACKED PLANT PROTEIN
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Correspondence Address:
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Applicant: EVLUTION NUTRITION, LLC
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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 18, 2019
The referenced application has been reviewed by the assigned trademark examining attorney. Applicant must respond timely and completely to the issue(s) below. 15 U.S.C. §1062(b); 37 C.F.R. §§2.62(a), 2.65(a); TMEP §§711, 718.03.
Office 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).
Disclaimer
In this case, applicant has disclaimed the term “PROTEIN” apart from the mark. However, applicant must also disclaim the term “PLANT” because it is a term that modifies “PROTEIN” and together the terms are not inherently distinctive. The terms at best are merely descriptive of an ingredient or feature of applicant’s goods. See 15 U.S.C. §1052(e)(1); DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 1251, 103 USPQ2d 1753, 1755 (Fed. Cir. 2012); TMEP §§1213, 1213.03(a).
Applicant’s specimens show that its supplements contain “plant protein” and more specifically protein derived from “peas”, “rice” and “alfalfa”. See applicant’s photo of goods in specimen. Thus, the wording “plant protein” merely describes a feature or ingredient of applicant’s goods and should be disclaimed apart from the mark as a whole.
Applicant may respond to this issue by submitting a disclaimer in the following format:
No claim is made to the exclusive right to use “PLANT PROTEIN” apart from the mark as shown.
For an overview of disclaimers and instructions on how to satisfy this issue using the Trademark Electronic Application System (TEAS), see the Disclaimer webpage.
Telephone Call Encouraged
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
/Russ Herman/
Examining Attrorney
Law Office 101
(571)272-9172
russ.herman@uspto.gov
RESPONSE GUIDANCE