To: | Cend Limited (efiling@grr.com) |
Subject: | U.S. Trademark Application Serial No. 88738424 - MYVITAMINS - 4897/168 |
Sent: | March 24, 2020 05:32:16 PM |
Sent As: | ecom114@uspto.gov |
Attachments: |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88738424
Mark: MYVITAMINS
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Correspondence Address: GOTTLIEB, RACKMAN & REISMAN, P.C.
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Applicant: Cend Limited
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Reference/Docket No. 4897/168
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: March 24, 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.
SEARCH OF USPTO DATABASE OF MARKS
SUMMARY OF ISSUES APPLICANT MUST ADDRESS
THIS PARTIAL REQUIREMENT APPLIES ONLY TO THE GOODS SPECIFIED THEREIN
The wording “meal replacement powders” and “nutritional drink mixes for use as a meal replacement” is not acceptable because meal replacement goods are only in Class 5 if they are for medical use or as a nutritional supplement. Otherwise, these goods are classified in Classes 29-33 according to their particular nature and what they are made from. Most drink powders, for example, are in Class 32. Applicant must rewrite this wording and reclassify if necessary.
The “drinks predominantly of vitamins; vitamin drinks” must be amended to clearly identify the purpose. Drinking water with vitamins, for example, is in Class 32. However, nutritional supplement drinks are in Class 5.
The “pharmaceuticals” must be identified by stating what disease or condition they treat.
The “dried milk-based products for meal replacements” must be amended to identify the specific products. Additionally, the goods must be reclassified according to the purpose of the goods. As stated above, if they are for medical purpose, then they are classified in Class 5. However, other goods are classified according to the specific type of products. Dried milk powder for food, for example, is in Class 29.
Therefore, applicant must remove the parentheses from the identification and incorporate any parenthetical or bracketed information into the description of the goods and/or services.
Applicant’s goods and/or services may be clarified or limited, but may not be expanded beyond those originally itemized in the U.S. application or as acceptably amended. See 37 C.F.R. §2.71(a); TMEP §1402.06. Applicant may clarify or limit the identification by inserting qualifying language or deleting items to result in a more specific identification; however, applicant may not substitute different goods and/or services or add goods and/or services not found in or encompassed by those in the original U.S. application or as acceptably amended. See TMEP §1402.06(a)-(b). The scope of the goods and/or services sets the outer limit for any changes to the identification and is generally determined by the ordinary meaning of the wording in the identification. TMEP §§1402.06(b), 1402.07(a)-(b). Any acceptable changes to the goods and/or services will further limit scope, and once goods and/or services are deleted, they are not permitted to be reinserted. TMEP §1402.07(e). Additionally, for U.S. applications filed under Trademark Act Section 44(e), the scope of the identification for purposes of permissible amendments may not exceed the scope of the goods and/or services identified in the foreign registration. 37 C.F.R. §2.32(a)(6); Marmark, Ltd. v. Nutrexpa, S.A., 12 USPQ2d 1843, 1845 (TTAB 1989) (citing In re Löwenbräu München, 175 USPQ 178, 181 (TTAB 1972)); TMEP §§1012, 1402.01(b).
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.
Applicant may adopt the following identification, if accurate:
International Class 5: Vitamin supplements; preparations of vitamins; vitamin tablets; multivitamins; dietary supplements; enzyme dietary supplements; glucose dietary supplements; nutritional supplements; amino acid supplements; mineral supplements; food supplements for dietetic use; herbal extracts for medical purposes; meal replacement powders for medical use; nutritional drink mixes for use as a meal replacement for medical use; nutritional supplement drinks predominantly of vitamins; nutritional supplement vitamin drinks; health food supplements made principally of minerals; health food supplements made principally of vitamins; herbal dietary supplements for persons special dietary requirements; pharmaceuticals for treatment of (identify what is treated); non-medicated food supplements being glucose confectionery
International Class 29: dried milk powders for food purposes for meal replacements.
MULTIPLE-CLASS APPLICATION REQUIREMENTS
The application identifies goods and/or services that are classified in at least TWO classes; however, applicant submitted a fee(s) sufficient for only ONE class(es). In a multiple-class application, a fee for each class is required. 37 C.F.R. §2.86(a)(2), (b)(2); TMEP §§810.01, 1403.01. For more information about adding classes to an application, see the Multiple-class Application webpage.
Therefore, applicant must either (1) restrict the application to the number of classes covered by the fees already paid, or (2) submit the fees for each additional class.
The USPTO changed the federal trademark rules to eliminate the TEAS RF application, which is now considered a “TEAS Standard” application. See 37 C.F.R. §2.6(a)(iii). The fee for adding classes to a TEAS Standard application is $275 per class. See id. For more information about these changes, see the Mandatory Electronic Filing webpage.
(1) List the goods and/or services by their international class number in consecutive numerical order, starting with the lowest numbered class.
(2) Submit a filing fee for each international class not covered by the fee(s) already paid (view the USPTO’s current fee schedule). The application identifies goods and/or services that are classified in at least TWO classes; however, applicant submitted a fee(s) sufficient for only ONE class(es). Applicant must either submit the filing fees for the classes not covered by the submitted fees or restrict the application to the number of classes covered by the fees already paid.
See 37 C.F.R. §2.86(a); TMEP §§1403.01, 1403.02(c).
For an overview of the requirements for a Sections 1(b) and 44 multiple-class application and how to satisfy the requirements online using the Trademark Electronic Application System (TEAS) form, see the Multiple-class Application webpage.
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.
Please note, TEAS Plus applicants are subject to additional requirements. Please call or email the assigned trademark examining attorney with questions about this Office action. Although an examining attorney cannot provide legal advice, the examining attorney can provide additional explanation about the refusal(s) and/or requirement(s) in this Office action. See TMEP §§705.02, 709.06.
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.
How to respond. Click to file a response to this nonfinal Office action.
/Eugenia K. Martin/
Eugenia K. Martin
Examining Attorney
Law Office 114
571-272-9458
eugenia.martin@uspto.gov
RESPONSE GUIDANCE