To: | ECOMI Technology PTE. LTD. (hmandelbaum@msellp.com) |
Subject: | U.S. Trademark Application Serial No. 88695201 - VEVE - ECOM0010US |
Sent: | February 21, 2020 04:31:39 PM |
Sent As: | ecom116@uspto.gov |
Attachments: |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88695201
Mark: VEVE
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Correspondence Address: |
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Applicant: ECOMI Technology PTE. LTD.
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Reference/Docket No. ECOM0010US
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: February 21, 2020
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.
REGISTRATION IS REFUSED – ACCEPTABLE SPECIMEN OF USE IS REQUIRED
A display specimen for downloadable software (1) must show use of the mark directly associated with the goods and (2) such use must be of a point-of-sale nature. 37 C.F.R. §2.56(b)(1). To show use of a point-of-sale nature, a specimen generally must provide sufficient information to enable the user to download or purchase the software from a website. See TMEP §904.03(a) (citing In re Azteca Sys., Inc., 102 USPQ2d 1955, 1957 (TTAB 2012)).
In this case, the specimen does not provide the means to enable the user to download or purchase the software from the online source or website. See In re Sones, 590 F.3d 1282, 1286-89, 93 USPQ2d 1118, 1122-24 (Fed. Cir. 2009); In re Azteca Sys., Inc., 102 USPQ2d at 1957; TMEP §904.03(e), (i). Specifically, the specimen consists of a picture of the software application on a mobile device, however the means for downloading the software is not shown.
Accordingly, such material is mere advertising, which is not acceptable as a specimen for goods. See In re Siny Corp., 920 F.3d 1331, 1336, 2019 USPQ2d 127099, at *2-3 (Fed. Cir. 2019) (citing Powermatics, Inc. v. Globe Roofing Prods. Co., 341 F.2d 127, 130, 144 USPQ 430, 432 (C.C.P.A. 1965)); see also Avakoff v. S. Pac. Co., 765 F.2d 1097, 1098, 226 USPQ 435, 436 (Fed. Cir. 1985); TMEP §904.04(b), (c).
Examples of specimens. Specimens for downloadable software include instruction manuals or screen printouts from (1) webpages showing (a) the mark associated with the software and (b) ordering or purchasing information or information sufficient to download the software, (2) the actual program while running that shows the mark in the title bar, or (3) launch screens that show the mark in an introductory message box that appears after opening the program. See TMEP §904.03(e), (i), (j). Any webpage printout or screenshot submitted as a substitute specimen must include the webpage’s URL and the date it was accessed or printed. 37 C.F.R. §2.56(c).
Response options. 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 the amendment to allege use and (b) shows the mark in actual use in commerce for the software 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 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) (which includes withdrawing an amendment to allege use, if one was filed), as no specimen is required before publication. This option will later necessitate additional fee(s) and filing requirements, including a specimen.
For an overview of the response options referenced above and instructions on how to satisfy these options using the online Trademark Electronic Application System (TEAS) form, see the Specimen webpage.
ASSISTANCE
The USPTO does not accept emails as responses to Office actions; however, emails can be used for informal communications and are included in the application record. See 37 C.F.R. §§2.62(c), 2.191; TMEP §§304.01-.02, 709.04-.05.
SEARCH RESULTS
RESPONSE TO OFFICE ACTION
How to respond. Click to file a response to this nonfinal Office action.
/Tina L Snapp/
Examining Attorney
Law Office 116
571-272-9224
Informal Email Tina.Snapp@uspto.gov
RESPONSE GUIDANCE