Response to Office Action

Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1957 (Rev 10/2011)

OMB No. 0651-0050 (Exp 09/30/2020)

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Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1957 (Rev 10/2011)

OMB No. 0651-0050 (Exp 09/30/2020)

Response to Office Action

To the Commissioner for Trademarks:

Application serial no. 88779828 DUENDE(Standard Characters, see http://uspto.report/TM/88779828/mark.png) has been amended as follows:

ARGUMENT(S)
In response to the substantive refusal(s), please note the following:

This is in response to the SUMMARY OF ISSUES on the non final office action. 1- Specimen Unacceptable The issue was that the specimens originally submitted were from a streaming service, not of downloadable songs. Two examples have been uploaded showing an album and a single, both available for sale from before the date of the application on the iTunes App. Additionally, a copy of the same album for sale on Amazon.com has been uploaded. The URL of the screenshot has been included (with date). 2 - Sections 1, 2 And 45 Refusal ? Performing Artist The issue is the music must be a series of recordings and the artists controls the quality. A screenshot from Apple iTunes App shows a combination of 8 albums and 6 singles that I have produced under this mark. Additionally. I declare and swear, ?The applicant produces the goods and controls their quality.? Thank you.

CLASSIFICATION AND LISTING OF GOODS/SERVICES

Applicant proposes to amend the following:

Current:
Class 009 for Audio and video recordings featuring music and artistic performances; Digital music downloadable from the Internet; Downloadable music files
Filing Basis: Section 1(a), Use in Commerce: The applicant is using the mark in commerce, or the applicant's related company or licensee is using the mark in commerce, on or in connection with the identified goods and/or services. 15 U.S.C. Section 1051(a), as amended. The mark was first used at least as early as 01/01/1995 and first used in commerce at least as early as 01/01/2003 , and is now in use in such commerce.


Proposed:
Class 009 for Audio and video recordings featuring music and artistic performances; Digital music downloadable from the Internet; Downloadable music files
Filing Basis: Section 1(a), Use in Commerce: The applicant is using the mark in commerce, or the applicant's related company or licensee is using the mark in commerce, on or in connection with the identified goods and/or services. 15 U.S.C. Section 1051(a), as amended. The mark was first used at least as early as 01/01/1995 and first used in commerce at least as early as 01/01/2003 , and is now in use in such commerce.
Applicant hereby submits one(or more) specimen(s) for Class 009. The specimen(s) submitted consists of Screenshots: 54- iTunes App -- "Sangre y Raiz" is an album that is for sale and downloadable before the date of the application. 55- iTunes App- "Mientras Estas Aqui" is a single that is for sale and downloadable before the date of the application. 57- Amazon.com (10-14-2020) Shows "Sangre y Raiz" for sale before the date of the application. http://www.amazon.com/Sangre-y-Raiz-Explicit-Duende/dp/B07ZL4CP5W/ref=sr_1_1 dchild=1&keywords=duende+sangre+y+raiz+album&qid=1602728317&s=dmusic&sr=1-1 59- iTunes App - Showing 8 albums and 6 singles for sale to demonstrate the use of the mark in a series of recordings (not all pre date the application).
"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"[for an application based on Section 1(a), Use in Commerce] OR "The substitute (or new, or originally submitted, if appropriate) specimen(s) was/were in use in commerce prior either to the filing of the Amendment to Allege Use or expiration of the filing deadline for filing a Statement of Use" [for an application based on Section 1(b) Intent-to-Use]. OR "The attached specimen is a true copy of the specimen that was originally submitted with the application, amendment to allege use, or statement of use" [for an illegible specimen].
Specimen File1
Specimen File2
Specimen File3
Specimen File4

ADDITIONAL STATEMENTS
Translation
The English translation of Duende in the mark is Elf.


Miscellaneous Statement
In response to the non final office action: SECTIONS 1, 2 AND 45 REFUSAL - PERFORMING ARTIST (2) Submitting evidence The applicant publishes or produces the goods and controls their quality.

Correspondence Information (current):
      HERNANDEZ, CARLOS ALONSO
      PRIMARY EMAIL FOR CORRESPONDENCE: ADMIN@VENDEMUSIC.COM
      SECONDARY EMAIL ADDRESS(ES) (COURTESY COPIES): NOT PROVIDED
Correspondence Information (proposed):
      Hernandez, Carlos Alonso
      PRIMARY EMAIL FOR CORRESPONDENCE: ADMIN@VENDEMUSIC.COM
      SECONDARY EMAIL ADDRESS(ES) (COURTESY COPIES): NOT PROVIDED

Requirement for Email and Electronic Filing: I understand that a valid email address must be maintained by the owner/holder and the owner's/holder's attorney, if appointed, and that all official trademark correspondence must be submitted via the Trademark Electronic Application System (TEAS).

SIGNATURE(S)
Declaration Signature

DECLARATION: The signatory being warned that willful false statements and the like are punishable by fine or imprisonment, or both, under 18 U.S.C. § 1001, and that such willful false statements and the like may jeopardize the validity of the application or submission or any registration resulting therefrom, declares that, if the applicant submitted the application or allegation of use (AOU) unsigned, all statements in the application or AOU and this submission based on the signatory's own knowledge are true, and all statements in the application or AOU and this submission made on information and belief are believed to be true.

STATEMENTS FOR UNSIGNED SECTION 1(a) APPLICATION/AOU: If the applicant filed an unsigned application under 15 U.S.C. §1051(a) or AOU under 15 U.S.C. §1051(c), the signatory additionally believes that: the applicant is the owner of the mark sought to be registered; the mark is in use in commerce and was in use in commerce as of the filing date of the application or AOU on or in connection with the goods/services/collective membership organization in the application or AOU; the original specimen(s), if applicable, shows the mark in use in commerce as of the filing date of the application or AOU on or in connection with the goods/services/collective membership organization in the application or AOU; for a collective trademark, collective service mark, collective membership mark application, or certification mark application, the applicant is exercising legitimate control over the use of the mark in commerce and was exercising legitimate control over the use of the mark in commerce as of the filing date of the application or AOU; for a certification mark application, the applicant is not engaged in the production or marketing of the goods/services to which the mark is applied, except to advertise or promote recognition of the certification program or of the goods/services that meet the certification standards of the applicant. To the best of the signatory's knowledge and belief, no other persons, except, if applicable, authorized users, members, and/or concurrent users, have the right to use the mark in commerce, either in the identical form or in such near resemblance as to be likely, when used on or in connection with the goods/services/collective membership organization of such other persons, to cause confusion or mistake, or to deceive.

STATEMENTS FOR UNSIGNED SECTION 1(b)/SECTION 44 APPLICATION AND FOR SECTION 66(a) COLLECTIVE/CERTIFICATION MARK APPLICATION: If the applicant filed an unsigned application under 15 U.S.C. §§ 1051(b), 1126(d), and/or 1126(e), or filed a collective/certification mark application under 15 U.S.C. §1141f(a), the signatory additionally believes that: for a trademark or service mark application, the applicant is entitled to use the mark in commerce on or in connection with the goods/services specified in the application; the applicant has a bona fide intention to use the mark in commerce and had a bona fide intention to use the mark in commerce as of the application filing date; for a collective trademark, collective service mark, collective membership mark, or certification mark application, the applicant has a bona fide intention, and is entitled, to exercise legitimate control over the use of the mark in commerce and had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce as of the application filing date; the signatory is properly authorized to execute the declaration on behalf of the applicant; for a certification mark application, the applicant will not engage in the production or marketing of the goods/services to which the mark is applied, except to advertise or promote recognition of the certification program or of the goods/services that meet the certification standards of the applicant. To the best of the signatory's knowledge and belief, no other persons, except, if applicable, authorized users, members, and/or concurrent users, have the right to use the mark in commerce, either in the identical form or in such near resemblance as to be likely, when used on or in connection with the goods/services/collective membership organization of such other persons, to cause confusion or mistake, or to deceive.

Signature: /VENDE MUSIC, INC./      Date: 10/14/2020
Signatory's Name: Gregory D Busby
Signatory's Position: President


Signature: /CAH/      Date: 10/14/2020
Signatory's Name: Carlos Alonso Hernandez
Signatory's Position: Owner

Response Signature
Signature: /VENDE MUSIC, INC./     Date: 10/14/2020
Signatory's Name: GREGORY D BUSBY
Signatory's Position: PRESIDENT

Response Signature
Signature: /CAH/     Date: 10/14/2020
Signatory's Name: CARLOS ALONSO HERNANDEZ
Signatory's Position: OWNER

The signatory has confirmed that he/she is not represented by an authorized attorney, and that he/she is either: (1) the owner/holder; or (2) a person or persons with legal authority to bind the owner/holder; and if he/she had previously been represented by an attorney in this matter, either he/she revoked their power of attorney by filing a signed revocation with the USPTO or the USPTO has granted this attorney's withdrawal request.

Mailing Address:    HERNANDEZ, CARLOS ALONSO
   
   
   6285 RUSTIC HAVEN CT
   LAS VEGAS, Nevada 89156
Mailing Address:    Hernandez, Carlos Alonso
   6285 Rustic Haven CT
   LAS VEGAS, Nevada 89156
        
Serial Number: 88779828
Internet Transmission Date: Wed Oct 14 23:08:10 ET 2020
TEAS Stamp: USPTO/ROA-XXXX:XXXX:XX:XXXX:XXXX:XXXX:XX
XX:XXXX-20201014230810967286-88779828-75
0e62da17ba437c81f23d0a4e11b9ebc64c946441
3a79bcdff56c1c4f42fee53b-N/A-N/A-2020101
4210808444281