United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88649299
Mark: USA NUTRITIONALS
|
|
Correspondence Address: 99 SMITHTOWN BYPASS, 2ND FLOOR
|
|
Applicant: Larry Sayage
|
|
Reference/Docket No. 1724-18
Correspondence Email Address: |
|
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: January 22, 2020
The assigned examining attorney has reviewed the referenced application and determines as follows:
No Conflicting Marks
The Office records have been searched and no similar registered or pending mark has been found that would bar registration under Trademark Act Section 2(d), 15 U.S.C. §1052(d). TMEP §704.02.
Summary of Issue Below:
(1) Disclaimer of descriptive wording
Applicant must provide a disclaimer of the unregistrable part(s) of the applied-for mark even though the mark as a whole appears to be registrable. See 15 U.S.C. §1056(a); TMEP §§1213, 1213.03(a). A disclaimer of an unregistrable part of a mark will not affect the mark’s appearance. See Schwarzkopf v. John H. Breck, Inc., 340 F.2d 978, 979-80, 144 USPQ 433, 433 (C.C.P.A. 1965).
In this case, applicant must disclaim the wording “USA Nutritionals” because it is not inherently distinctive. These unregistrable term(s) at best are merely descriptive of an ingredient, quality, characteristic, function, feature, purpose, or use of applicant’s goods and/or services. 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).
Here, the proposed mark is USA Nutritionals for dietary supplements, vitamin supplements, and vitamins. “USA” is an acronym for the “United States of America”. Please see the attached Merriam-Webster.com definition. Further, the term “Nutritionals” is a term of art within the supplements industry. By way of example, please see the Richmond Integrative & Functional Medicine website, which discusses the safety of “supplements and nutritionals”. Please see the attached. This reference demonstrates that the term is understood within the industry as a term of art. Further, the wording is utilized within the industry, as evidenced by the Command Nutritionals The Powder People, Glanbia Nutritionals, and Daktari Nutritionals. Again, this usage demonstrates that the term is understood within the industry as a term of art. Finally, please see the attached third-party registrations that demonstrate use of the wording within the industry and descriptive of the wording based upon either a disclaimer, 2f statement, or presentation on the Supplemental Register. The combined wording merely describes a type of supplement or vitamin that is considered a nutritionals and that is likely offered in the geographic area of the United States of America.
Applicant may respond to this issue by submitting a disclaimer in the following format:
No claim is made to the exclusive right to use “USA Nutritionals” 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.
A mark in an application under Trademark Act Section 1(b) is not eligible for registration on the Supplemental Register until an acceptable amendment to allege use under 37 C.F.R. §2.76 has been filed. 37 C.F.R. §§2.47(d), 2.75(b); TMEP §§815.02, 1102.03. When a Section 1(b) application is successfully amended 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 the amendment to allege use. TMEP §§816.02, 1102.03; see 37 C.F.R. §2.75(b).
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.
/Nakia D. Henry/
Trademark Attorney (Law Office 117)
Phone: (571) 272-7208
Fax: (571) 273-7208
E-mail: nakia.henry@uspto.gov
RESPONSE GUIDANCE