To: | Augustine, Inc. (ckim@charleskimlaw.com) |
Subject: | U.S. Trademark Application Serial No. 88657135 - FLAKES - ps_flakes |
Sent: | January 22, 2020 12:51:51 PM |
Sent As: | ecom120@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 Attachment - 21 Attachment - 22 Attachment - 23 Attachment - 24 Attachment - 25 Attachment - 26 Attachment - 27 Attachment - 28 Attachment - 29 Attachment - 30 |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88657135
Mark: FLAKES
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Correspondence Address:
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Applicant: Augustine, Inc.
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Reference/Docket No. ps_flakes
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: January 22, 2020
INTRODUCTION
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
Applicant seeks registration of the mark, FLAKES, in standard character, for “Bath salts not for medical purposes” in class 3.
“Whether consumers could guess what the product [or service] is from consideration of the mark alone is not the test.” In re Am. Greetings Corp., 226 USPQ 365, 366 (TTAB 1985).
The attached definition shows that FLAKES means a flat, thin layer. See attached. In addition, applicant’s product packaging indicates that the goods are primarily comprised of “pure salt flakes from the Dead Sea.” See attached from applicant’s website. Furthermore, the wording FLAKES is commonly used to categorically describe the type, shape or characteristic of salt. See attached pages from Wikipedia (“Flake Salt” is a category of salt characterized by their plate-lake crystals); Maldon Sea Salt Flakes (the product packaging showing that “Maldon Sea Salt Flakes” are wholly comprised of “sea salt flakes” from Maldon); Rachel Ray article (describing Flake Sea Salt have large crystals); Real Simple article (describing Flaked Sea Salt as having the texture of “soft, sheer, pyramid-like flakes”); Wild Kosher Flake Salt (describing the salt as “kosher flake texture”); The Meadow (listing “flake salt” as a category of salt).
In addition, “flakes” is commonly used by third parties to describe their bath salts or bath flakes due to the shape of the goods. See attached pages from Ancient Minerals Magnesium Bath Flakes (goods comprised of magnesium flakes); Organix 100% Pure Magnesium Salt Bath Flakes (goods comprised of magnesium
chloride flakes, and describing
“magnesium flakes are proven to be absorbed by the body much more effectively”); Seven Minerals (selling Magnesium Bath Flakes, and also describing benefits of magnesium bath salts and flakes); Salt
Works (discussing benefits of salt baths, including use of natural flake sea salt; also selling Pacific Blue Kosher Salt Flake Sea Salt that has flake characteristic or “treasured kosher flake
texture”); Naturopathica Sweet Birch Magnesium Bath Flakes (comprised of magnesium flakes for use in baths).
Thus, the applied-for mark, FLAKES immediately conveys knowledge of a feature, ingredient, quality, or characteristic of applicant’s bath salts – that is, it is comprised of flake-shaped ingredients. A mark is merely descriptive if “it immediately conveys information concerning a feature, quality, or characteristic of [an applicant’s] goods or services.” In re N.C. Lottery, 866 F.3d 1363, 1367, 123 USPQ2d 1707, 1709 (Fed. Cir. 2017) (citing In re Bayer Aktiengesellschaft, 488 F.3d 960, 963, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007)); TMEP §1209.01(b); see DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 1251, 103 USPQ2d 1753, 1755 (Fed. Cir. 2012) (quoting In re Abcor Dev. Corp., 588 F.2d 811, 814, 200 USPQ 215, 218 (C.C.P.A. 1978)).
Accordingly, the applied-for mark is refused under Section 2(e)(1) of the Trademark Act because it is merely descriptive of the applicant’s goods.
Generic Advisory
IDENTIFICATION OF GOODS – Amendment Required
This feature or characteristic is considered desirable for applicant’s goods because it infers that the goods dissolve easily and quickly. However, if some or all of the goods do not (or will not) in fact have or exhibit this feature or characteristic, then registration may be refused because the mark consists of or includes deceptive matter in relation to the identified goods. See 15 U.S.C. §1052(a); In re Budge Mfg. Co., 857 F.2d 773, 8 USPQ2d 1259 (Fed. Cir. 1988); TMEP §1203.02-.02(b).
To avoid such refusal, applicant may amend the identification to specify that the goods possess this relevant feature or characteristic. See TMEP §§1203.02(e)(ii), (f)(i), 1402.05 et seq. However, merely amending the identification to exclude goods with the named feature or characteristic will not avoid a deceptiveness refusal. TMEP §1203.02(f)(i).
Therefore, applicant may amend the identification to the following, if accurate:
Class 3: Bath salts comprised of bath flakes not for medical purposes
Scope. Applicant may amend the identification to clarify or limit the goods, but not to broaden or expand the goods beyond those in the original application or as acceptably amended. See 37 C.F.R. §2.71(a); TMEP §1402.06. Generally, any deleted goods may not later be reinserted. See TMEP §1402.07(e).
ID Manual. For assistance with identifying and classifying goods and services in trademark applications, please see the USPTO’s online searchable U.S. Acceptable Identification of Goods and Services Manual. See TMEP §1402.04.
Response guidelines. 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.
/Jeane Yoo/
Examining Attorney
Law Office 120
(571) 272-5021
Jeane.Yoo@uspto.gov
RESPONSE GUIDANCE