To: | SHENZHEN SMOORE TECHNOLOGY LIMITED (tm@bayramoglu-legal.com) |
Subject: | U.S. Trademark Application Serial No. 88635313 - PTF - N/A |
Sent: | November 09, 2019 02:28:54 PM |
Sent As: | ecom120@uspto.gov |
Attachments: |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88635313
Mark: PTF
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Correspondence Address: 1540 WEST WARM SPRINGS ROAD, SUITE 100
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Applicant: SHENZHEN SMOORE TECHNOLOGY LIMITED
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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: November 09, 2019
Applicant has applied for the mark “PTF” in special form for use in connection with the following:
“Electronic cigarettes; Electronic cigarette liquid (e-liquid) comprised of flavorings in liquid form, other than essential oils, used to refill electronic cigarette cartridges; Electronic cigarette liquid (e-liquid) comprised of propylene glycol; Electronic cigarette liquid (e-liquid) comprised of vegetable glycerin; Cigarette cases; Cigars; Cigarette holders; Cigarette tubes; Tobacco pipes; Oral vaporizers for smokers; Tobacco substitutes not for medical purposes; Oral vaporizing devices for smokers; Hand held machines for injecting tobacco into paper cigarette tubes; Electronic devices for the purpose of heating cigarettes or tobacco for the purpose of inhalation”
Applicant did not specify an International Class in the application. The goods have been properly classified in International Class 034. Proper classification of goods and services is a purely administrative matter within the sole discretion of the USPTO. See In re Faucher Indus. Inc., 107 USPQ2d 1355, 1357 (TTAB 2013) (quoting In re Tee-Pak, Inc., 164 USPQ 88, 89 (TTAB 1969)).
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).
SUMMARY OF ISSUES THAT APPLICANT MUST ADDRESS
SPECIMEN DOES NOT SHOW MARK WITH SPECIFIC CLASS
An application based on Trademark Act Section 1(a) must include a specimen showing the applied-for mark in use in commerce for each international class of goods and/or services identified in the application or amendment to allege use. 15 U.S.C. §1051(a)(1); 37 C.F.R. §§2.34(a)(1)(iv), 2.56(a); TMEP §§904, 904.07(a).
Here, the applied- for mark is used to describe a feature of the goods and not the goods themselves. Specifically, the following factors evidence that the applied- for mark is used to describe a feature within applicant’s goods: 1) The applied- for mark appears atop the wording “PRESS-TO-FILL ON TOP” and “PRESS TO FILL SYSTEM” in the specimens of record. The noted wording describes a function or use of the “PTF”/ “PRESS TO FILL” system that is a component of applicant’s goods; 2) The applied- for mark appears on the side of the packaging instead of the top of the packaging, which is inconsistent with the manner in which source identifying marks are commonly placed on packaging in applicant’s trade or industry; and 3) The applied- for mark appears in a smaller font size than the wording that appears on the top of the packaging, which further illustrates that the wording on the top of the box is centrally placed and of a larger size to draw consumer attention for source indicating purposes. Taken together, the applied- for mark does not indicate the source of the goods where it describes a feature of the goods and not the goods themselves. Therefore, the specimen fails to show the applied- for mark in used in commerce in connection with the identified goods and cannot be accepted.
Examples of specimens for goods include tags, labels, instruction manuals, containers, photographs that show the mark on the actual goods or packaging, and displays associated with the actual goods at their point of sale. See TMEP §§904.03 et seq. Webpages may also be specimens for goods when they include a picture or textual description of the goods associated with the mark and the means to order the goods. TMEP §904.03(i).
Applicant may respond to this refusal by satisfying one of the following for each applicable international class:
(1) Submit a different specimen (a verified “substitute” specimen) that (a) was in actual use in commerce at least as early as the filing date of the application or prior to the filing of an amendment to allege use and (b) shows the mark in actual use in commerce for the goods and/or services identified in the application or amendment to allege use. A “verified substitute specimen” is a specimen that is accompanied by the following statement made in a signed affidavit or supported by a declaration under 37 C.F.R. §2.20: “The substitute (or new, or originally submitted, if appropriate) specimen(s) was/were in use in commerce at least as early as the filing date of the application or prior to the filing of the amendment to allege use.” The substitute specimen cannot be accepted without this statement.
(2) Amend the filing basis to intent to use under Section 1(b), for which no specimen is required. This option will later necessitate additional fee(s) and filing requirements such as providing a specimen.
For an overview of both response options referenced above and instructions on how to satisfy either option online using the Trademark Electronic Application System (TEAS) form, please go to http://www.gov.uspto.report/trademarks/law/specimen.jsp.
MARK DESCRIPTION
The following description is suggested, if accurate: The mark consists of the literal element “PTF” inside of a circle. The letter “T” is represented by a horizontal line that is connected to two curved vertical strokes.
RESPONSE OPTIONS
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.
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
/Shari Gadson/
Trademark Examining Attorney
Law Office 120
United States Patent and Trademark Office
571-272-9319
shari.gadson@uspto.gov
RESPONSE GUIDANCE