To: | RiGO Trading S.A. (trademark@leydig.com) |
Subject: | U.S. Trademark Application Serial No. 88597810 - VAMPIRE BATS - 745525 |
Sent: | November 24, 2019 04:36:36 PM |
Sent As: | ecom108@uspto.gov |
Attachments: | Attachment - 1 Attachment - 2 Attachment - 3 Attachment - 4 Attachment - 5 Attachment - 6 Attachment - 7 Attachment - 8 Attachment - 9 Attachment - 10 Attachment - 11 Attachment - 12 Attachment - 13 Attachment - 14 Attachment - 15 Attachment - 16 Attachment - 17 Attachment - 18 Attachment - 19 Attachment - 20 |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88597810
Mark: VAMPIRE BATS
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Correspondence Address: |
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Applicant: RiGO Trading S.A.
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Reference/Docket No. 745525
Correspondence Email Address: |
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NONFINAL OFFICE ACTION
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 24, 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.
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).
SECTION 2(e)(1) REFUSAL - MERELY DESCRIPTIVE
Generally, where a mark is comprised of a combination of words, if the individual components of a mark retain their descriptive meaning in relation to the goods, the combination results in a composite mark that is itself descriptive and not registrable. In re Fat Boys Water Sports LLC, 118 USPQ2d 1511, 1516 (TTAB 2016) (citing In re Tower Tech, Inc., 64 USPQ2d 1314, 1317-18 (TTAB (2002)); TMEP §1209.03(d); see, e.g., Apollo Med. Extrusion Techs., Inc. v. Med. Extrusion Techs., Inc., 123 USPQ2d 1844, 1851 (TTAB 2017) (holding MEDICAL EXTRUSION TECHNOLOGIES merely descriptive of medical extrusion goods produced by employing medical extrusion technologies); In re Cannon Safe, Inc., 116 USPQ2d 1348, 1351 (TTAB 2015) (holding SMART SERIES merely descriptive of metal gun safes); In re King Koil Licensing Co., 79 USPQ2d 1048, 1052 (TTAB 2006) (holding THE BREATHABLE MATTRESS merely descriptive of beds, mattresses, box springs, and pillows).
Only where the combination of descriptive terms creates a unitary mark with a unique, incongruous, or otherwise nondescriptive meaning in relation to the goods is the combined mark registrable. See In re Colonial Stores, Inc., 394 F.2d 549, 551, 157 USPQ 382, 384 (C.C.P.A. 1968); In re Positec Grp. Ltd., 108 USPQ2d 1161, 1162-63 (TTAB 2013).
In this case, both the individual components and the composite result are descriptive of applicant’s goods and do not create a unique, incongruous, or nondescriptive meaning in relation to the goods. Specifically, a vampire bat is a type of bat. See http://www.ahdictionary.com/word/search.html?q=vampire%20bat (attached); http://a-z-animals.com/animals/vampire-bat/pictures/4379/ (attached). Third-parties frequently make candy and gummies in the shape of a vampire bat. See, e.g., http://www.crazycandies.co.nz/products/vampire-bat-gummies, http://www.strawberryhillcandy.com/bat/?gclid=EAIaIQobChMIr_3S_NyD5gIVhZOzCh1FkQGxEAQYBCABEgKytvD_BwE, http://www.candywarehouse.com/orange-and-black-candy-bats-4lb-bag, http://www.candywarehouse.com/giant-gummy-scary-bat (all attached). Further, applicant’s goods feature those in the shape of a vampire bat. See, e.g., http://www.amazon.com/Haribo-Halloween-Limited-Gummy-Vampire/dp/B075KBXSM2 and http://www.amazon.com/Haribo-Sour-Vampire-Gummi-Candy/dp/B07MDS7V38/ref=pd_sbs_325_img_2/142-4614508-1306326?_encoding=UTF8&pd_rd_i=B07MDS7V38&pd_rd_r=6a881ee3-a68c-46d1-ab8f-b01abad08fe8&pd_rd_w=jnpUC&pd_rd_wg=79COy&pf_rd_p=5cfcfe89-300f-47d2-b1ad-a4e27203a02a&pf_rd_r=XB7QA7G7Y2AK5G94E723&psc=1&refRID=XB7QA7G7Y2AK5G94E723 (attached).
Accordingly, registration is refused because the applied-for mark is merely descriptive of a feature of applicant’s goods.
Advisory – Supplemental Register Not Available
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.
REQUEST FOR INFORMATION
(1) Fact sheets, instruction manuals, brochures, advertisements and pertinent screenshots of applicant’s website as it relates to the goods in the application, including any materials using the terms in the applied-for mark. Merely stating that information about the goods 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 of the same type, explaining how its own product or services will differ. Factual information about the goods must make clear the salient features, and prospective customers and channels of trade. Conclusory statements will not satisfy this requirement; and
(3) Applicant must respond to the following question: State whether applicant’s goods or the packaging for applicant’s goods will be in the shape a vampire bat.
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.
RESPONDING TO THE OFFICE ACTION
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.
/Ashley D. Hayes/
Ashley D. Hayes
Examining Attorney
Law Office 108
(571) 272-2826
ashley.hayes@uspto.gov
RESPONSE GUIDANCE