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. 88585328 SYNERGY(Standard Characters, see http://uspto.report/TM/88585328/mark.png) has been amended as follows:

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

RESPONSE UNDER 37 C.F.R. § 2.62

REMARKS

 

1.         Section 2(d) – Likelihood of Confusion with Registration No. 4,936,311 Refusal

 

            Applicant currently uses the trademark SYNERGY on saddle pads for horses in Class 18, for which it owns Registration No. 5,608,313. On August 20, 2019, Applicant filed an intent to use application for SYNERGY in Class 18 in relation to “equine boots; equine leg wraps; horse tack, namely, bits, breast collars, cinches, curb straps, headstalls, nosebands, reins, spurs, spur straps, and tie downs.” The Examiner has refused registration of Applicant’s mark on the ground of confusing similarity to Farrier Product Distribution, Inc.’s trademark SYNERGY, Registration No. 4,936,311, for “horseshoes; metal horseshoes” in Class 18. Reconsideration of this refusal is respectfully requested.

 

            To determine whether a likelihood of confusion has been shown in a particular case, the Examiner must consider the factors summarized in In re E.I. DuPont DeNmours & Co., 476 F.2d 1357 (CCPA 1973). In re Coors Brewing Co., 343 F.3d 1340, 1343 (Fed. Cir. 2003). The DuPont factors are: (1) The similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression; (2) The similarity or dissimilarity and nature of the goods or services as described in an application or registration or in connection with which a prior mark is in use; (3) The similarity or dissimilarity of established, likely-to-continue trade channels; (4) The conditions under which, and buyers to whom, sales are made; (5) The fame of the prior mark; (6) The number and nature of similar marks in use on similar goods; (7) The nature and extent of any actual confusion; (8) The length of time during and conditions under which there has been concurrent use without evidence of actual confusion; (9) The variety of goods on which a mark is or is not used (house mark, "family" mark, product mark); (10) The market interface between applicant and the owner of a prior mark; (11) The extent to which applicant has a right to exclude others from use of its mark on its goods; (12) The extent of potential confusion; (13) Any other established fact probative of the effect of use.  In re DuPont, 476 F.2d at 1361. The first two DuPont factors should always be considered by the Examiner, while the remaining factors must be considered only if relevant evidence is introduced into the record. T.M.E.P. § 1207.01.

 

A.  Similarity of the Marks

 

Consistent with its existing registration, Applicant is seeking to register a standard character mark for SYNERGY. The Registrant also has a standard character mark for SYNERGY. 

 

B. Nature and Similarity of Goods/Services and Market Interface between the Mark Owners.

 

            The Examiner points to a number of trademark registrations issued to companies that claim to sell both horseshoes and products that are the same or similar to those sold by the Applicant. Eight of the ten cited registrations were issued to Chinese companies. The Commissioner of Trademarks has acknowledged a dramatic increase in Chinese filings, many of which do not seem legitimate. See Statement of Commissioner for Trademarks Mary Boney Denison before the United States House Subcommittee on Courts, Intellectual Property, and the Internet Committee on the Judiciary, attached hereto as Exhibit A. These applications “appear to be rife with false information.” See Flood of Trademark Applications from China Alarms U.S. Officials, attached hereto as Exhibit B. The undersigned conducted a Google search which could not find any examples of the registered marks in use on horseshoes or even horse related products, although several are apparently in use on products designed for dogs.

 

            The Examiner also points to a registration owned by the Federation of International Polo. The Federation is the international federation representing the sport of polo. See Federation of International Polo Welcome Page, attached hereto as Exhibit C. The Federation was established in 1982. See Federation of International Polo, About Us Page, attached hereto as Exhibit D. Despite this, the Federation did not use it logo on any of the wide array of listed products anywhere in the world until April 1, 2014. See Federation of International Polo FiP 1982, Registration No. 5,139,886, attached hereto as Exhibit E. Thus, it is apparent that the Federation does not present itself as the manufacturer of this wide array of goods; rather, it clearly licenses its mark to those who wish to be affiliated with the federation recognized by the International Olympic Committee for this sport. The licensing of an international sporting federation to those who want to use the mark on the products they manufacture sheds little light on whether the goods listed in the Federation’s registration are similar. Indeed, following that line of logic, horseshoes would be related to sneakers, as both are listed in the Federation’s registration.

 

            The final registration cited by the Examiner issued to Tina Brady. Brady starred in TNT’s Private Lives of Nashville Wives. See Tina Brady launches Music City Bling Jewelry Line, attached hereto as Exhibit F. The Registration attached to the Office Action indicated that Brady first used the MUSIC CITY BLING mark in Class 18 for products including horseshoes on March 1, 2014. However, Brady gave an interview in July of 2014 saying she had “plans” to expand the Music City Bling line to horseshoes. Id. While a Google search reveals that a jewelry line was launched, the undersigned could not locate any horseshoes being offered for sale under the Music City Bling mark.

 

            Thus, the cited registrations shed little light on whether horse shoes should be categorized as similar to other products marketed for use with horses. The Trademark Commissioner has herself acknowledged that the recent wave of Chinese applications seem to be rife with incorrect information. The undersigned recently reviewed a registration in which the registrant apparently checked every available box for transportation related services—everything from renting horses to launching satellites into orbit for others, and demonstrated use by submitting a picture of a magnetic sign attached to a car. Similarly, only one of these registrants is based in the United States and she indicated that she “planned” to launch a line of horseshoes—four months after her trademark application indicates that she had already done so.

 

            Weaver Leather has been manufacturing products for horses since 1973. See Affidavit of Carlos Mullet, at ¶3, attached hereto as Exhibit G. Although it produces a wide variety of horse related products, Weaver Leather does not manufacture horse shoes. Id. Weaver Leather focuses on products which are marketed directly to horse owners. Id. at ¶4. However, horseshoes are largely purchased by farriers, who shod horses for others. Id. at ¶5. Thus, the marketing for horseshoes is directed to farriers, rather than horse owners who buy Weaver Leather’s products. Id. at ¶5. Over the 46 years it has been in business, Weaver Leather has yet to encounter a competitor who manufactures products for horse owners who also manufactures horseshoes. Id. at ¶8. Thus, while Weaver Leather’s products are designed for use with horses, that does not make them similar to horse shoes.

 

C. Similarity of Trade Channels and Conditions under which Buyers Encounter the Marks.

 

Even if goods are identical, the Examiner still must consider “[t]he similarity or dissimilarity of established, likely-to-continue trade channels”; “[t]he conditions under which, and buyers to whom, sales are made”; and “[t]he market interface between applicant and the owner of a prior mark.” In re DuPont, 476 F.2d at 1361. The Registrant’s website is directed towards “professional farriers”. See Farrier Product Distribution Welcome Page, attached hereto as Exhibit H. The Registrant only sells its products through “FPD dealers.” Id. In contrast, Weaver Leather does not sell its products directly to farriers or through FPD dealers. See Exhibit G at ¶6. Rather, Weaver Leather markets its products directly to horse owners rather than those providing services to them, and sells its products through a wide variety of tack dealers and farm store retailers. Id. at ¶7.

 

Further, the Registrant lists four brands of horseshoes on its website—and Synergy is not one of them. See Farrier Product Distribution Products Page, attached hereto as Exhibit I. Rather, a search of the Farrier Product Distribution website indicates that the Registrant always lists the Synergy Products as Kerckhaert Synergy horseshoes. See Farrier Product Distribution Search Results for: synergy, attached hereto as Exhibit J. Kerckhaert is itself a registered trademark in relation to goods of metal for use in the farrier trade. See Kerckhaert, Registration No. 1,737,952, attached hereto as Exhibit K. Similarly, Weaver Leather marks its Synergy products with Weaver Leather’s well known trademark. See Amazon listing for Weaver Leather Synergy Contoured Performance Saddle Pad, attached hereto as Exhibit L.     

 

Thus, both the Applicant and the Registrant combine their Synergy marks with another existing trademark, which should virtually eliminate any confusion as to the origin of the products in question. This is especially true when one considers that the products are distributed through different trade channels, and the additional marks are well known in those trade channels.

 

D. Nature of the Buyers.

 

Circumstances suggesting care in purchasing may tend to minimize the likelihood of confusion. TMEP § 1207.01(d)(vii). In addition, circumstances that show differences in relevant purchasers, sophistication of those purchasers, and the expenses thereof mitigate against finding that the goods or services are related, even though they may be provided in the same general field. In re Digirad Corp., 1998 WL 104305 (TTAB 1998) (Gamma radiation sensors, signal processors and display apparatus for use in nuclear imaging market under DIGIRAD are not related to electronic digital x-ray system and related computer software for medical use marketed under the mark DIGIRAY). The care exercised by the typical purchaser may virtually eliminate mistaken purchases. AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 351 (9th Cir. 1979). Common sense may indicate that the goods or services being sold are not the type made only on general impressions, and such disregard of trade symbols may reduce the possibilities for confusion. Id. Further, “the more sophisticated and careful the average consumer of a product is, the less likely it is that similarities in trade dress or trade marks will result in confusion concerning the source or sponsorship of the product.” Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc., 973 F.2d 1033, 1046 (2d Cir. 1992).

 

As indicated above, the Registrant markets its horseshoes to professional farriers. See Exhibit H. Such professionals are purchasing horseshoes to use in conjunction with the services they offer to horse owners, and will presumably exercise great care selecting such products, both because the horses entrusted to them are expensive and because using an inferior product would reflect badly upon them. Professional farriers are unlikely to purchase Weaver Leather’s products just because they also use the trademark SYNERGY—and there is no reason to think that farriers would be selecting horse tack and related goods for their customers in the first place, as opposed to customers purchasing those items themselves.

 

E. Right to Exclude Others from Use of the Mark on Applicant’s Goods.

As pointed out above, the Applicant was issued its own registration for SYNERGY in relation to saddle pads on November 13, 2018. See Synergy Registration No. 5,608,313, attached hereto as Exhibit M. Thus, the Applicant has a presumptive right to exclusive nationwide use of the SYNERGY mark in relation to saddle pads. See 15 U.S.C. § 1115(a). The goods listed in the current application are highly related to Applicant’s existing registration for the same mark, and it would therefore have a right to exclude others from using that mark on the goods listed in the application.

F. Concurrent Use and Lack of Evidence of Actual Confusion

The Registrant’s first use of the SYNERGY mark on horseshoes was October 3, 2008. See Synergy Registration No. 4,936,311, attached hereto as Exhibit N. The Applicant’s first use of SYNERGY on saddles pads was December 1, 2017. See Exhibit M. In the nearly two years since Applicant began using its SYNERGY mark, the Applicant has not been contacted by anyone who believed that Weaver Leather, LLC was affiliated with Farrier Product Distribution, Inc. See Exhibit G at ¶10. “The best proof of the fact that confusion is not likely to be caused is that no confusion has resulted in numerous transactions in the past.” Gold Seal Co. v. Marzall, 100 F. Supp. 185, 187 (D.D.C. 1951). Even where evidence of actual confusion arguably exists, the Courts have often discounted such evidence where it was insubstantial, especially in light of the number of sales and the parties’ advertising.  AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 352 (9th Cir. 1979).

G. The Prior Mark is not Famous.

Weaver Leather has been making products for use by horse owners for almost fifty years. See Exhibit G at ¶9. Despite this, Weaver Leather was unaware that the Registrant had adopted the mark SYNERGY for horseshoes in 2008. Id. This is almost certainly because the Registrant promotes its horseshoes products to a niche market—professional farriers. See Exhibit H. Finally, Applicant would note that Registrant’s original registration for SYNERGY was allowed to lapse in 2015. See TESS Page for Synergy Registration No. 3,558,880, attached hereto as Exhibit O. While a new registration was eventually issued, it would be very unusual in the undersigned’s experience for a mark which had met the requirements of fame to be allowed to lapse in this manner.

H.  Conclusion

The Applicant and the Registrant use different trade channels and their ultimate customers do not overlap, with the Applicant’s products being marketed to individual horse owners and the Registrant’s products being marketed to professional farriers who buy horseshoes in conjunction with their farrier services. The USPTO concluded that there was no likelihood of confusion between Applicant’s saddle pads for horses and Registrant’s horseshoes, and the additional products which Applicant seeks to market under its existing SYNERGY trademark are similar to its saddle pads, i.e, products marketed to individual horse owners rather than professionals providing services to those individuals. The fact that Registrant’s mark is not famous and no confusion has resulted after two years of concurrent use only serves to bolster that conclusion. Therefore, the Applicant respectfully requests that its application be allowed to proceed to publication. 

2.         Section 2(d) – Potential Conflict with Application Serial No. 79/242929 Refusal

Applicant currently uses the trademark SYNERGY on saddle pads for horses in Class 18, for which it owns Registration No. 5,608,313. On August 20, 2019, Applicant filed an intent to use application for SYNERGY in Class 18 in relation to “equine boots; equine leg wraps; horse tack, namely, bits, breast collars, cinches, curb straps, headstalls, nosebands, reins, spurs, spur straps, and tie downs.” The Examiner has indicated that Hammersmith Nominees Pty Ltd’s Application for SynergyPanel, Application Serial No. 79/242929, for goods and equipment for horse riding, namely, jump saddles, may present a bar to registration of Applicant’s mark. Reconsideration of this refusal is respectfully requested.

On November 1, 2018, the USPTO issued an Office Action with a provisional full refusal of the Hammersmith application based upon a likelihood of confusion between the SynergyPanel mark and the Farrier Product Distribution Inc. registration of SYNERGY in relation to horseshoes, and Weaver Leather’s then pending application for SYNERGY in relation to saddle pads. See Office Action issued 11/1/2018, attached hereto as Exhibit P. Hammersmith amended its application to drop most of the goods listed in the original application and argued that the addition of the word “Panel” was sufficient to distinguish Hammersmith’s SynergyPanel saddles from Weaver Leather’s Synergy saddle pads. See Response to Office Action filed 3/19/2019, attached hereto as Exhibit Q. The USPTO accepted that the amendment eliminated the likelihood of confusion with Farrier Product Distribution’s SYNERGY mark, but maintained the refusal based upon Weaver Leather’s registration. See Office Action issued 4/2/2019, attached hereto as Exhibit R. Hammersmith has now filed a response again claiming that Panel is sufficient to distinguish SynergyPanel from SYNERGY and that its saddles are English saddles while Weaver Leather’s saddle pads are used with Western saddles. See Response to Office Action filed 10/2/2019, attached hereto as Exhibit S.        

In this instance, it is not necessary to apply the DuPont factors. Two office actions have now issued in relation to the application cited by the Examiner, both of which propose to refuse registration because of a likelihood of confusion with Applicant’s existing registration. In the unlikely event that the Examiner assigned to that mark changes her mind and allows that application to proceed to publication, the only possible basis for doing so would be that the addition of the word PANEL creates a significantly different commercial impression. In other words, the Hammersmith application can only proceed to registration in the event that the USPTO concludes that there is no likelihood of confusion between SynergyPanel and SYNERGY for use not only on products generally related to horses, but to products specifically related to saddles. If the USPTO were to adopt that line of reasoning, then there would be no basis for refusing Applicant’s current application for Synergy relating to non-saddle related products. The conditional refusal based upon the Hammersmith application should therefore be withdrawn.

EVIDENCE
Evidence in the nature of Exhibit A- Statement of Commissioner of Trademarks; Exhibit B- WSJ Article Flood of Trademark Applications from China; Exhibit C- Federation of International Polo Welcome Page; Exhibit D- Federation of International Polo About Us Page; Exhibit E- Federation of International Polo TM Registration; Exhibit F- Wilson Post Article re Tina Brady & Music City Bling; Exhibit G- Affidavit of Carlos Mullet; Exhibit H- Farrier Products Distribution Welcome Page; Exhibit I- Farrier Products Distribution Products Page; Exhibit J- Farrier Products Distribution Search Results for Synergy; Exhibit K- Kerckhaert TM Registration; Exhibit L- Amazon Listing for Weaver Synergy Saddle Pad; Exhibit M- Weaver Leather Synergy Registration; Exhibit N- Farrier Products Distribution Synergy Registration; Exhibit O- TESS Page for Cancelled Farrier Products Synergy Registration; Exhibit P- Office Action Issued 11-1-2018; Exhibit Q- Response to Office Action dated 3-19-2019; Exhibit R- Office Action Issued 4-2-2019 re SynergyPanel; and Exhibit S- Response to Office Action filed 10-2-2019 has been attached.
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evi_241401502-20191021135051047953_._Exhibit_I-_Farrier_Products_Distribution_Products_Page.pdf
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evi_241401502-20191021135051047953_._Exhibit_L-_Amazon_Listing_for_Weaver_Synergy_Saddle_Pad.pdf
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evi_241401502-20191021135051047953_._Exhibit_M-_Weaver_Leather_Synergy_Registration.pdf
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evi_241401502-20191021135051047953_._ESS_Page_for_Cancelled_Farrier_Products_Synergy_Registration.pdf
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evi_241401502-20191021135051047953_._Exhibit_P-_Office_Action_Issued_11-1-2018_re_SynergyPanel.pdf
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evi_241401502-20191021135051047953_._Q-_Response_to_Office_Action_dated_3-19-2019_re_SynergyPanel.pdf
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CLASSIFICATION AND LISTING OF GOODS/SERVICES

Applicant hereby adds the following class of goods/services to the application:
New: Class 006 for Spurs
Filing Basis: Section 1(b), Intent to Use: For a trademark or service mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to use the mark in commerce on or in connection with the identified goods/services in the application. For a collective trademark, collective service mark, or collective membership mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by members on or in connection with the identified goods/services/collective membership organization. For a certification mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by authorized users in connection with the identified goods/services, and 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.

FEE(S)
Fee(s) in the amount of $225 is being submitted.

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: /Carlos Mullet/      Date: 10/21/2019
Signatory's Name: Carlos Mullet
Signatory's Position: Chief Financial Officer

Response Signature
Signature: /Andrew P. Lycans/     Date: 10/21/2019
Signatory's Name: Andrew P. Lycans
Signatory's Position: Attorney of Record, Ohio Bar Member

Signatory's Phone Number: 330-264-4444

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.

        
RAM Sale Number: 88585328
RAM Accounting Date: 10/21/2019
        
Serial Number: 88585328
Internet Transmission Date: Mon Oct 21 14:43:45 EDT 2019
TEAS Stamp: USPTO/ROA-XX.XXX.XXX.X-20191021144345701
053-88585328-610efb7a7ccd883262a39fc7cd9
f73e8738338184edf8a16ae7a365dd21ff2c-CC-
43446779-20191021135051047953