To: | Plant Therapy LLC (chris.herzinger@planttherapy.com) |
Subject: | U.S. Trademark Application Serial No. 88743332 - ENERGY - N/A |
Sent: | October 31, 2020 05:01:58 PM |
Sent As: | ecom117@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 |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88743332
Mark: ENERGY
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Correspondence Address: |
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Applicant: Plant Therapy LLC
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Reference/Docket No. N/A
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: October 31, 2020
This Office action is in response to applicant’s communication filed on September 28, 2020.
The applicant amended to the Supplemental Register. However, based on the identification, the mark remains misdescriptive because it fails to express that the purpose of the good is to improve “energy”. Thus the refusals are continued as follows.
Applicant seeks to register the mark ENERGY for use with “Essential oils; Scented oils”.
A term is deceptive when all three of the following criteria are met:
(1) Is the term misdescriptive of the character, quality, function, composition or use of the goods [and/or services]?
(2) If so, are prospective purchasers likely to believe that the misdescription actually describes the goods [and/or services]?
(3) If so, is the misdescription likely to affect the purchasing decision of a significant portion of relevant consumers?
In re Tapco Int’l Corp., 122 USPQ2d 1369, 1371 (TTAB 2017) (citing In re Budge Mfg. Co., 857 F.2d 773, 775, 8 USPQ2d 1259, 1260 (Fed. Cir. 1988)); TMEP §1203.02(b); see also In re Spirits Int’l, N.V., 563 F.3d 1347, 1353, 1356, 90 USPQ2d 1489, 1492-93, 1495 (Fed. Cir. 2009) (holding that the test for materiality incorporates a requirement that a “significant portion of the relevant consumers be deceived”).
In this case, applicant’s mark consists of the wording “Essential oils; Scented oils”. There is no indication that the goods contain energy ingredients. However the mark is called ENERGY.
Consumers would be likely to believe this misdescription in the mark, because the attached evidence from Good Sweat shows that it is common in applicant’s industry for such goods orange, or peppermint or cardamom for energy. However the applicant has not stated in its identification 1) that the goods would contain these ingredients and 2) would improve energy.
A misdescriptive feature or characteristic would be material to the purchasing decision of a significant portion of the relevant consumers when the evidence demonstrates that the misdescription would make the product or service more appealing or desirable to prospective purchasers. In re White Jasmine LLC, 106 USPQ2d 1385, 1392 (TTAB 2013) (citing In re Juleigh Jeans Sportswear Inc., 24 USPQ2d 1694, 1698-99 (TTAB 1992)); TMEP §1203.02(d).
In the present case, the article shows that the misdescriptive feature, namely energy boosting ingredient, renders the goods more appealing or desirable because consumers seek products that can restore energy and improve their longevity for the day. Thus, the misdescription is likely to affect a significant portion of the relevant consumers’ decision to purchase applicant’s goods.
(1) A written statement explaining whether the goods do or will contain caffeine, creatine, taurine or specific energy ingredient.
(2) A sample of advertisements or promotional materials featuring the goods and/or a photograph of the identified goods, or if such materials are not available, applicant must submit samples of advertisements or promotional materials and a photograph of similar goods.
(3) A written statement describing in detail the nature, purpose, and channels of trade of the goods.
See 37 C.F.R. §2.61(b); TMEP §§814, 1402.01(e).
Failure to comply with a request for information is grounds for refusing registration. In re Harley, 119 USPQ2d 1755, 1757-58 (TTAB 2016); TMEP §814. Merely stating that information about the goods or services is available on applicant’s website is an insufficient response and will not make the relevant website information of record. See In re Planalytics, Inc., 70 USPQ2d 1453, 1457-58 (TTAB 2004).
Applicant is advised that, if applicant’s response to the request for information indicates that the goods identified in the application do not or will not contain specific energy ingredients, registration may be refused on the ground that the applied-for mark is deceptive. Trademark Act Section 2(a), 15 U.S.C. §1052(a); see In re Budge Mfg. Co., 857 F.2d 773, 775-77, 8 USPQ2d 1259, 1260-62 (Fed. Cir. 1988); In re ALP of S. Beach Inc., 79 USPQ2d 1009, 1010 (TTAB 2006); TMEP §1203.02-.02(e). Registration may also be refused, in the alternative, on the ground that the applied-for mark is deceptively misdescriptive. 15 U.S.C. §1052(e)(1); see In re Berman Bros. Harlem Furniture Inc., 26 USPQ2d 1514, 1515-16 (TTAB 1993); TMEP §§1203.02(e), 1209.04.
The applicant should also note the following additional ground for refusal.
Merely Descriptive
Applicant seeks to register the mark ENERGY for use with “Essential oils; Scented oils”.
In this case the mark ENERGY refers to an ingredient that gives energy when consumed. In addition to the evidence attached in the prior office action, the examining attorney attached in this office action two more articles to shows that essential oils, like peppermint or citrus, increase energy.
Terms that describe the function or purpose of a product or service may be merely descriptive. TMEP §1209.03(p); see, e.g., In re Hunter Fan Co., 78 USPQ2d 1474, 1477 (TTAB 2006) (holding ERGONOMIC merely descriptive of ceiling fans); In re Wallyball, Inc., 222 USPQ 87, 89 (TTAB 1984) (holding WALLYBALL merely descriptive of sports clothing and game equipment); In re Orleans Wines, Ltd., 196 USPQ 516, 517 (TTAB 1977) (holding BREADSPRED merely descriptive of jams and jellies).
Based on the mark, the goods that identify specific energy ingredients and the attached evidence, the examining attorney finds that the mark is descriptive and refuses registration under the Trademark Act §2(e)(1), 15 U.S.C. 1052(e)(1).
Applicant May Respond
Although the examining attorney has refused registration, the applicant may respond to the refusal to register by submitting evidence and arguments in support of registration.
If the applicant chooses to respond to the refusal to register, the applicant must also respond to the following informalities.
Supplemental Register
The applied-for mark has been refused registration on the Principal Register. Applicant may respond to the refusal by submitting evidence and arguments in support of registration and/or by amending the application to seek registration on the Supplemental Register. See 15 U.S.C. §1091; 37 C.F.R. §§2.47, 2.75(a); TMEP §§801.02(b), 816. Amending to the Supplemental Register does not preclude applicant from submitting evidence and arguments against the refusal(s). TMEP §816.04.
If the applicant has any questions or needs assistance in responding to this Office action, please call or e-mail the assigned examining attorney.
How to respond. Click to file a response to this nonfinal Office action.
/D. Beryl Gardner/
Trademark Examining Attorney
Law Office 117
571-272-9162 (O)
571-273-9162 (F)
beryl.gardner@uspto.gov
RESPONSE GUIDANCE