| 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) |
| Input Field |
Entered |
|---|---|
| SERIAL NUMBER | 88597075 |
| LAW OFFICE ASSIGNED | LAW OFFICE 114 |
| MARK SECTION | |
| MARK FILE NAME | http://uspto.report/TM/88597075/mark.png |
| LITERAL ELEMENT | FAHRENHEIT |
| STANDARD CHARACTERS | NO |
| USPTO-GENERATED IMAGE | NO |
| ARGUMENT(S) | |
|
In the Official Action, the Examiner has refused registration of Applicant’s mark on the Principal Register because of the “likelihood of confusion” of the mark with the mark in U.S. Registration No. 3101658. Applicant respectfully disagrees and believes that the Examiner has failed to make a prima facie showing of likelihood of confusion. The question of likelihood of confusion between marks is “related not to the nature of the mark but to its effect ‘when applied to the goods of the applicant.’ The only relevant application is made in the marketplace. The words ‘when applied’ do not refer to a mental exercise, but to all of the known circumstances surrounding use of the mark.” In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 1360-61 (C.C.P.A. 1973) (original emphasis). In determining whether there is a likelihood of confusion, courts look to many factors, including as particularly relevant here: The similarity or dissimilarity of the marks in their entirety; the similarity or dissimilarity and nature of the goods or services such that one party’s goods will be mistaken for those of the other party; the channels of distribution of the goods or services; the conditions under which the goods or services are purchased (i.e. impulse buying versus purchases made after careful consideration); the sophistication of the purchasers of the goods or services; the number and nature of similar marks in use on similar goods or services; and the nature and extent of any actual confusion. Id. at 1361. Applicant addresses these factors in the sections below. I. APPLICANT HAS AMENDED THE IDENTIFICATION OF GOODS. In reply to the Official Action, Applicant has amended the present application so as to restrict the identification of goods and services. As amended, Applicant’s goods in Class 25 have been significantly narrowed and now solely consist of “Men’s socks, namely, thermal socks; Men's underwear, namely, thermal underwear; Women’s underwear, namely, thermal underwear”. As such, there is no likelihood of confusion with the cited registration because the channels of trade will tend to avoid any chance of a likelihood of confusion. In re The Shoe Works Inc., 6 USPQ2d 1890, 1891(TTAB 1988) (“By its amendment, applicant has restricted the channels of trade for its goods to its own retail shoe store outlets . . . We agree with applicant in this case that the restriction of its channels of trade will tend to avoid likelihood of confusion.”). Since a comparison of the goods or services in applications is based solely upon the respective identifications, it is evident that, as now defined; Applicant’s goods and services clearly differentiate it from the goods and/or services of the cited registration and travel in vastly different channels of trade. Accordingly, the mark should be published for opposition. Squirtco v. Tomy Corp., 216 USPQ2d 937 (TTAB 1983). II. NO LIKELIHOOD OF CONFUSION WITH U.S. REGISTRATION NO. 3101658 A. The Marks Differ in Appearance and Sound. Applicant’s mark is “FAHRENHEIT (STYLIZED)” and the cited registrant’s mark is “FAHRENHEIT HEADWEAR COMPANY”. As such, the respective marks must be reviewed for likelihood of confusion as a whole and should not be broken into component parts to reach a conclusion of confusing similarity. In re Hearst Corp., 25 USPQ2d 1238, 1239 (Fed. Cir. 1992) (explaining that “marks tend to be perceived in their entireties, and all components thereof must be given appropriate weight.”. . .” When GIRL is given fair weight, along with VARGA, confusion with VARGAS becomes less likely”). Professor McCarthy states in his treatise that the “anti-dissection” rule is violated in instances in which the “focus is on a prominent feature of conflicting marks and likelihood of confusion is decided solely upon that feature, ignoring all other elements of the mark.” J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, § 23:41 at 23-125,126 (4th ed. 2004). It is also well established that there is nothing improper, under certain circumstances, to give more or less weight to a particular portion of a mark. See In re National Data Corp., 753 F.2d 1056, 224 USPQ 749 (Fed. Cir. 1985). Any such adjustment given to a portion of a mark must still be considered with respect to the “anti-dissection” rule. See Shen Mfg. Co., Inc. v. The Ritz Hotel Ltd., 393 F.3d 1238 (Fed. Cir. 2004) (explaining that “while there are often discrete terms in marks that are more dominant and, thus, more significant to the assessment of similarity, the law forbids the type of dissection proposed . . .”). “The ultimate conclusion of similarity or dissimilarity must rest on consideration of the marks in their entirety.” Packard Press, Inc. v. Hewlett-Packard Co., 227 F.3d 1352, 1358 (Fed. Cir. 2000). The cited registrant’s “FAHRENHEIT HEADWEAR COMPANY” mark is dissimilar in overall appearance to the Applicant’s “FAHRENHEIT (STYLIZED)” mark. The dissimilarities include the additional terms “HEADWEAR COMPANY” in the cited registrant’s mark and the stylized font design with the reversed letter “e” in the Applicant’s mark, which combine to create visually distinctive and contrasting marks. As a matter of law, the purchaser is presumed not to retain a specific memory of the exact components of a mark, but rather a general impression. It is that general impression that forms the basis for any likelihood of confusion analysis. Where there are significant differences, it is proper to assume that the overall commercial impression of the marks would be different to the relevant public. See TMEP §1207.01(b). Another highly important difference between the Applicant’s mark and the cited registrant’s mark is in the sound or pronunciation of the respective marks. While it is true that there is no “correct” pronunciation of a mark, reasonable consumers would pronounce the cited registrant’s mark as “far-uh n-hahyt-hed-wair-kuhm-puh-nee”. On the other hand, reasonable consumers would pronounce the Applicant’s mark as “far-uh n-hahyt”. Upon closer inspection, the Applicant’s mark and the cited registrant’s mark do not have a similar appearance nor sound or pronunciation when spoken. As such, there is no likelihood of confusion between these marks. B. The Marks are Unrelated as to Goods/Services and Channels of Trade. Relatedness in terms of the channels of trade, means, in this context, that the goods or services of Applicant and the cited registrant are related in some manner or some circumstance surrounding the marketing such that they are likely to be encountered by the relevant public under circumstances that will give rise to the mistaken belief that they originate from or in some way are associated with or sponsored by the same producer. See TMEP § 1207.01(a)(i). Unless there is a restriction in the application and registration, “goods and services are presumed to travel in the same channels of trade to the same class of purchasers.” Hewlett Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1268 (Fed. Cir. 2002). Applicant’s goods (as amended herein) demonstrates no relatedness with those goods identified in the cited registration. Applicant notes that the cited registration has a very narrow identification of only “headwear” in Class 25. Applicant’s goods in Class 25 have been significantly narrowed and now solely consist of “Men’s socks, namely, thermal socks; Men's underwear, namely, thermal underwear; Women’s underwear, namely, thermal underwear”. There is no relation between “headwear” and “thermal socks and underwear”. On the face of the identification of goods, it is apparent that the parties’ goods travel in distinct channels of trade. The respective consumers are unlikely to encounter the goods of both Applicant and the cited registrant at the same time, location, or event. Accordingly, the parties’ respective goods serve entirely different markets and functions. The Examiner’s reliance on the evidence from the USPTO’s X-Search database is misplaced. By amendment, the Applicant’s has removed the cited goods relied upon by the Examiner in the analysis of the X-Search evidence. As such, the attached X-Search database records is not probative evidence of third-party marks registered for use in connection with the same or similar goods as those of both applicant and registrant in this case. For the above reasons, Applicant believes that the relevant consumers of the goods will not likely believe that Applicant and the cited registrant are related, nor will they encounter marketing or advertising that will give rise to the mistaken belief that the parties’ respective goods originate from or in some way are associated with each other. Applicant believes that these distinct differences in channels of trade render a likelihood of confusion between the marks an impossibility. C. The Examiner Did Not Provide Consideration to The Marks in Their Entirety. The Examiner’s argument also provides inadequate consideration to the parties’ marks in their entirety. See Juice Generation, Inc. v. GS Enterprises LLC, 794 F.3d 1334, 1340-41 (Fed. Cir. 2015). In the Official Action, the Examiner summarily disposed of the distinctiveness and source identifying aspect of the individual terms “HEADWEAR COMPANY” present in the cited registrant’s mark. However, these terms are vitally important to show the different connotations of the parties’ respective marks. It is well settled that “The commercial impression of a trade-mark is derived from it as a whole, not from its elements separated and considered in detail.” Estate of P.D. Beckwith, Inc., v. Comm’r of Patents, 252 U.S. 538, 545–46, 40 S.Ct. 414, 64 L.Ed. 705 (1920). In Juice Generation, the Federal Circuit explained why the Board’s similar analysis was inadequate: The Board declared that “PEACE LOVE” is the “dominant” portion of that combination, compared that portion to GS’s “PEACE & LOVE” phrase, found that they are “virtually identical,” and then simply added that “the additional disclaimed word ‘JUICE’ ... do[es] not serve to sufficiently distinguish” Juice Generation’s mark from GS’s marks. GS Enters., 2014 WL 2997639, at *5–6. That analysis is inadequate. It does not display any consideration of how the three word phrase in Juice Generation’s mark may convey a distinct meaning—including by having different connotations in consumers’ minds—from the two word phrase used by GS. Cf. Packard Press, Inc. v. Hewlett–Packard Co., 227 F.3d 1352, 1357 (Fed.Cir.2000) (“To be sure, the Board stated that it had considered the marks in their entireties. But this statement, absent further explanation of the agency’s reasoning, is simply insufficient for proper review of PTO fact finding.” (citation omitted)). 794 F.3d at 1341. The Examiner’s argument is remarkably similar to the Board’s reasoning in Juice Generation. In finding a likelihood of confusion between the marks, the Board zeroed in on “PEACE LOVE” as the dominant portion of the applicant’s mark and declared that the additional disclaimed word “JUICE” did not sufficiently distinguish the marks. Id. at 1337. Accordingly, the Examiner commits the same error as the Board in Juice Generation by dissecting the mark, zeroing in on the shared term, and dismissing the distinguishing words and meaning without ever considering the mark in its entirety. However, consideration of all elements of the marks must be performed in assessing the similarity of the marks, as the public is not aware of which words are house marks or disclaimed in an application. Thus, the Examiner’s argument is inadequate, as it fails to provide any consideration of the marks in their entirety, focusing only on the common term “FAHRENHEIT”. See Juice Generation, 794 F.3d at 1341 (“While the Board may properly afford more or less weight to particular components of a mark for appropriate reasons, it must still view the mark as a whole.”). Indeed, when considered in their entirety, the marks are readily distinguishable in terms of appearance, sound, meaning, and commercial impression. See Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee en 1772, 396 F.3d 1369, 1371 (Fed. Cir. 2005). Although the parties’ marks share a common element, the cited registrant’s mark contains the additional terms “HEADWEAR COMPANY” which directly informs the consumer that the registrant only makes headwear. As explained above, the additional terms in the marks must be considered when assessing similarity. Thus, the Examining Attorney errs by discounting the additional terms in the parties’ marks and failing to consider the distinct sound, appearance, connotation and commercial impression of the marks in their entireties. III. CONCLUSION Based on the foregoing analysis, Applicant requests that the Examiner reconsider the rejection of this application. As such, Applicant believes there will be no buyer confusion as to the source of the goods and services, and respectfully requests that the present mark be passed to publication at an early date. |
|
| GOODS AND/OR SERVICES SECTION (current) | |
| INTERNATIONAL CLASS | 025 |
| DESCRIPTION | |
| Men's socks; Men's underwear; Socks and stockings; Women's underwear | |
| FILING BASIS | Section 1(a) |
| FIRST USE ANYWHERE DATE | At least as early as 04/01/2019 |
| FIRST USE IN COMMERCE DATE | At least as early as 07/31/2019 |
| GOODS AND/OR SERVICES SECTION (proposed) | |
| INTERNATIONAL CLASS | 025 |
| TRACKED TEXT DESCRIPTION | |
| FINAL DESCRIPTION | |
| Men's socks, namely, thermal socks; Men's underwear, namely, thermal underwear; Women's underwear, namely, thermal underwear | |
| FILING BASIS | Section 1(a) |
| FIRST USE ANYWHERE DATE | At least as early as 04/01/2019 |
| FIRST USE IN COMMERCE DATE | At least as early as 07/31/2019 |
| SIGNATURE SECTION | |
| DECLARATION SIGNATURE | /986/001/ |
| SIGNATORY'S NAME | L. Jeremy Craft |
| SIGNATORY'S POSITION | Attorney of record, Texas bar member |
| SIGNATORY'S PHONE NUMBER | 7138029144 |
| DATE SIGNED | 01/21/2020 |
| RESPONSE SIGNATURE | /986/001/ |
| SIGNATORY'S NAME | L. Jeremy Craft |
| SIGNATORY'S POSITION | Attorney of record, Texas bar member |
| SIGNATORY'S PHONE NUMBER | 7138029144 |
| DATE SIGNED | 01/21/2020 |
| AUTHORIZED SIGNATORY | YES |
| FILING INFORMATION SECTION | |
| SUBMIT DATE | Tue Jan 21 17:19:59 EST 2020 |
| TEAS STAMP | USPTO/ROA-XXX.XX.XXX.XXX- 20200121171959780050-8859 7075-700267ec1fe40a1452a1 fef4eb347fed7dd7183c1a7c1 8b397e0b0cf72f04ddc60-N/A -N/A-20200121171348586083 |
| 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) |
In the Official Action, the Examiner has refused registration of Applicant’s mark on the Principal Register because of the “likelihood of confusion” of the mark with the mark in U.S. Registration No. 3101658. Applicant respectfully disagrees and believes that the Examiner has failed to make a prima facie showing of likelihood of confusion.
The question of likelihood of confusion between marks is “related not to the nature of the mark but to its effect ‘when applied to the goods of the applicant.’ The only relevant application is made in the marketplace. The words ‘when applied’ do not refer to a mental exercise, but to all of the known circumstances surrounding use of the mark.” In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 1360-61 (C.C.P.A. 1973) (original emphasis). In determining whether there is a likelihood of confusion, courts look to many factors, including as particularly relevant here: The similarity or dissimilarity of the marks in their entirety; the similarity or dissimilarity and nature of the goods or services such that one party’s goods will be mistaken for those of the other party; the channels of distribution of the goods or services; the conditions under which the goods or services are purchased (i.e. impulse buying versus purchases made after careful consideration); the sophistication of the purchasers of the goods or services; the number and nature of similar marks in use on similar goods or services; and the nature and extent of any actual confusion. Id. at 1361. Applicant addresses these factors in the sections below.
I. APPLICANT HAS AMENDED THE IDENTIFICATION OF GOODS.
In reply to the Official Action, Applicant has amended the present application so as to restrict the identification of goods and services. As amended, Applicant’s goods in Class 25 have been significantly narrowed and now solely consist of “Men’s socks, namely, thermal socks; Men's underwear, namely, thermal underwear; Women’s underwear, namely, thermal underwear”. As such, there is no likelihood of confusion with the cited registration because the channels of trade will tend to avoid any chance of a likelihood of confusion. In re The Shoe Works Inc., 6 USPQ2d 1890, 1891(TTAB 1988) (“By its amendment, applicant has restricted the channels of trade for its goods to its own retail shoe store outlets . . . We agree with applicant in this case that the restriction of its channels of trade will tend to avoid likelihood of confusion.”). Since a comparison of the goods or services in applications is based solely upon the respective identifications, it is evident that, as now defined; Applicant’s goods and services clearly differentiate it from the goods and/or services of the cited registration and travel in vastly different channels of trade. Accordingly, the mark should be published for opposition. Squirtco v. Tomy Corp., 216 USPQ2d 937 (TTAB 1983).
II. NO LIKELIHOOD OF CONFUSION WITH U.S. REGISTRATION NO. 3101658
A. The Marks Differ in Appearance and Sound.
Applicant’s mark is “FAHRENHEIT (STYLIZED)” and the cited registrant’s mark is “FAHRENHEIT HEADWEAR COMPANY”. As such, the respective marks must be reviewed for likelihood of confusion as a whole and should not be broken into component parts to reach a conclusion of confusing similarity. In re Hearst Corp., 25 USPQ2d 1238, 1239 (Fed. Cir. 1992) (explaining that “marks tend to be perceived in their entireties, and all components thereof must be given appropriate weight.”. . .” When GIRL is given fair weight, along with VARGA, confusion with VARGAS becomes less likely”). Professor McCarthy states in his treatise that the “anti-dissection” rule is violated in instances in which the “focus is on a prominent feature of conflicting marks and likelihood of confusion is decided solely upon that feature, ignoring all other elements of the mark.” J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, § 23:41 at 23-125,126 (4th ed. 2004). It is also well established that there is nothing improper, under certain circumstances, to give more or less weight to a particular portion of a mark. See In re National Data Corp., 753 F.2d 1056, 224 USPQ 749 (Fed. Cir. 1985). Any such adjustment given to a portion of a mark must still be considered with respect to the “anti-dissection” rule. See Shen Mfg. Co., Inc. v. The Ritz Hotel Ltd., 393 F.3d 1238 (Fed. Cir. 2004) (explaining that “while there are often discrete terms in marks that are more dominant and, thus, more significant to the assessment of similarity, the law forbids the type of dissection proposed . . .”). “The ultimate conclusion of similarity or dissimilarity must rest on consideration of the marks in their entirety.” Packard Press, Inc. v. Hewlett-Packard Co., 227 F.3d 1352, 1358 (Fed. Cir. 2000).
The cited registrant’s “FAHRENHEIT HEADWEAR COMPANY” mark is dissimilar in overall appearance to the Applicant’s “FAHRENHEIT (STYLIZED)” mark. The dissimilarities include the additional terms “HEADWEAR COMPANY” in the cited registrant’s mark and the stylized font design with the reversed letter “e” in the Applicant’s mark, which combine to create visually distinctive and contrasting marks. As a matter of law, the purchaser is presumed not to retain a specific memory of the exact components of a mark, but rather a general impression. It is that general impression that forms the basis for any likelihood of confusion analysis. Where there are significant differences, it is proper to assume that the overall commercial impression of the marks would be different to the relevant public. See TMEP §1207.01(b).
Another highly important difference between the Applicant’s mark and the cited registrant’s mark is in the sound or pronunciation of the respective marks. While it is true that there is no “correct” pronunciation of a mark, reasonable consumers would pronounce the cited registrant’s mark as “far-uh n-hahyt-hed-wair-kuhm-puh-nee”. On the other hand, reasonable consumers would pronounce the Applicant’s mark as “far-uh n-hahyt”. Upon closer inspection, the Applicant’s mark and the cited registrant’s mark do not have a similar appearance nor sound or pronunciation when spoken. As such, there is no likelihood of confusion between these marks.
B. The Marks are Unrelated as to Goods/Services and Channels of Trade.
Relatedness in terms of the channels of trade, means, in this context, that the goods or services of Applicant and the cited registrant are related in some manner or some circumstance surrounding the marketing such that they are likely to be encountered by the relevant public under circumstances that will give rise to the mistaken belief that they originate from or in some way are associated with or sponsored by the same producer. See TMEP § 1207.01(a)(i). Unless there is a restriction in the application and registration, “goods and services are presumed to travel in the same channels of trade to the same class of purchasers.” Hewlett Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1268 (Fed. Cir. 2002).
Applicant’s goods (as amended herein) demonstrates no relatedness with those goods identified in the cited registration. Applicant notes that the cited registration has a very narrow identification of only “headwear” in Class 25. Applicant’s goods in Class 25 have been significantly narrowed and now solely consist of “Men’s socks, namely, thermal socks; Men's underwear, namely, thermal underwear; Women’s underwear, namely, thermal underwear”. There is no relation between “headwear” and “thermal socks and underwear”. On the face of the identification of goods, it is apparent that the parties’ goods travel in distinct channels of trade. The respective consumers are unlikely to encounter the goods of both Applicant and the cited registrant at the same time, location, or event. Accordingly, the parties’ respective goods serve entirely different markets and functions.
The Examiner’s reliance on the evidence from the USPTO’s X-Search database is misplaced. By amendment, the Applicant’s has removed the cited goods relied upon by the Examiner in the analysis of the X-Search evidence. As such, the attached X-Search database records is not probative evidence of third-party marks registered for use in connection with the same or similar goods as those of both applicant and registrant in this case.
For the above reasons, Applicant believes that the relevant consumers of the goods will not likely believe that Applicant and the cited registrant are related, nor will they encounter marketing or advertising that will give rise to the mistaken belief that the parties’ respective goods originate from or in some way are associated with each other. Applicant believes that these distinct differences in channels of trade render a likelihood of confusion between the marks an impossibility.
C. The Examiner Did Not Provide Consideration to The Marks in Their Entirety.
The Examiner’s argument also provides inadequate consideration to the parties’ marks in their entirety. See Juice Generation, Inc. v. GS Enterprises LLC, 794 F.3d 1334, 1340-41 (Fed. Cir. 2015). In the Official Action, the Examiner summarily disposed of the distinctiveness and source identifying aspect of the individual terms “HEADWEAR COMPANY” present in the cited registrant’s mark. However, these terms are vitally important to show the different connotations of the parties’ respective marks. It is well settled that “The commercial impression of a trade-mark is derived from it as a whole, not from its elements separated and considered in detail.” Estate of P.D. Beckwith, Inc., v. Comm’r of Patents, 252 U.S. 538, 545–46, 40 S.Ct. 414, 64 L.Ed. 705 (1920). In Juice Generation, the Federal Circuit explained why the Board’s similar analysis was inadequate:
The Board declared that “PEACE LOVE” is the “dominant” portion of that combination, compared that portion to GS’s “PEACE & LOVE” phrase, found that they are “virtually identical,” and then simply added that “the additional disclaimed word ‘JUICE’ ... do[es] not serve to sufficiently distinguish” Juice Generation’s mark from GS’s marks. GS Enters., 2014 WL 2997639, at *5–6. That analysis is inadequate. It does not display any consideration of how the three word phrase in Juice Generation’s mark may convey a distinct meaning—including by having different connotations in consumers’ minds—from the two word phrase used by GS. Cf. Packard Press, Inc. v. Hewlett–Packard Co., 227 F.3d 1352, 1357 (Fed.Cir.2000) (“To be sure, the Board stated that it had considered the marks in their entireties. But this statement, absent further explanation of the agency’s reasoning, is simply insufficient for proper review of PTO fact finding.” (citation omitted)).
794 F.3d at 1341. The Examiner’s argument is remarkably similar to the Board’s reasoning in Juice Generation. In finding a likelihood of confusion between the marks, the Board zeroed in on “PEACE LOVE” as the dominant portion of the applicant’s mark and declared that the additional disclaimed word “JUICE” did not sufficiently distinguish the marks. Id. at 1337. Accordingly, the Examiner commits the same error as the Board in Juice Generation by dissecting the mark, zeroing in on the shared term, and dismissing the distinguishing words and meaning without ever considering the mark in its entirety. However, consideration of all elements of the marks must be performed in assessing the similarity of the marks, as the public is not aware of which words are house marks or disclaimed in an application. Thus, the Examiner’s argument is inadequate, as it fails to provide any consideration of the marks in their entirety, focusing only on the common term “FAHRENHEIT”. See Juice Generation, 794 F.3d at 1341 (“While the Board may properly afford more or less weight to particular components of a mark for appropriate reasons, it must still view the mark as a whole.”). Indeed, when considered in their entirety, the marks are readily distinguishable in terms of appearance, sound, meaning, and commercial impression. See Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee en 1772, 396 F.3d 1369, 1371 (Fed. Cir. 2005). Although the parties’ marks share a common element, the cited registrant’s mark contains the additional terms “HEADWEAR COMPANY” which directly informs the consumer that the registrant only makes headwear. As explained above, the additional terms in the marks must be considered when assessing similarity. Thus, the Examining Attorney errs by discounting the additional terms in the parties’ marks and failing to consider the distinct sound, appearance, connotation and commercial impression of the marks in their entireties.
III. CONCLUSION
Based on the foregoing analysis, Applicant requests that the Examiner reconsider the rejection of this application. As such, Applicant believes there will be no buyer confusion as to the source of the goods and services, and respectfully requests that the present mark be passed to publication at an early date.
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.