To: | Newman, David (smulholland@mulholland-law.com) |
Subject: | U.S. Trademark Application Serial No. 88800672 - BIOBLOOMGRO - N/A |
Sent: | May 08, 2020 04:18:41 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 |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88800672
Mark: BIOBLOOMGRO
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Correspondence Address: |
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Applicant: Newman, David
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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: May 08, 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.
SECTION 2(d) REFUSAL – LIKELIHOOD OF CONFUSION
Registration of the applied-for mark is refused because of a likelihood of confusion with the mark in U.S. Registration No. 5909290 “BIOBLOOM”. Trademark Act Section 2(d), 15 U.S.C. §1052(d); see TMEP §§1207.01 et seq. See the attached registration.
Although not all du Pont factors may be relevant, there are generally two key considerations in any likelihood of confusion analysis: (1) the similarities between the compared marks and (2) the relatedness of the compared goods and/or services. See In re i.am.symbolic, llc, 866 F.3d at 1322, 123 USPQ2d at 1747 (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1164-65, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)); Federated Foods, Inc. v. Fort Howard Paper Co.,544 F.2d 1098, 1103, 192 USPQ 24, 29 (C.C.P.A. 1976) (“The fundamental inquiry mandated by [Section] 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods [or services] and differences in the marks.”); TMEP §1207.01.
Applicant has applied for the mark “BIOBLOOMGRO” for “Foliar spray concentrate for agricultural applications to increase fruit, flower, yield, plant actives, nutrient uptake, immune response and environmental stress resistance, resistance to mold, mildew, pathogens, insects and pests and to improve soil health, quality, biodiversity, sustainability, nutrient profiles and productivity and soil capacity to sustain biological activity, life, maintain environmental quality, resist erosion, provide physical support, promote plant and ecosystem health, cycle and store biologically sustainable matter, increased capacity to store and filter water in agroecosystems” in International Class 1.
Registrant owns the mark “BIOBLOOM” for “Salt, raw, namely, sodium chloride; Esters, namely, cellulose esters for industrial purposes; Carbonic hydrates; Glucosides for industrial purposes; Industrial chemicals; Chemical reagents, other than for medical or veterinary purposes; Glucose for industrial purposes; Enzyme preparations for industrial purposes; Antioxidants and proteins used in the manufacture of cosmetics, beverages, food products and food supplements; Anti-static preparations other than for household purposes” in International Class 1.
Similarity of the Marks
Marks are compared in their entireties for similarities in appearance, sound, connotation, and commercial impression. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 1321, 110 USPQ2d 1157, 1160 (Fed. Cir. 2014) (quoting Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 1371, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005)); TMEP §1207.01(b)-(b)(v). “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018) (citing In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)), aff’d per curiam, 777 F. App’x 516, 2019 BL 343921 (Fed. Cir. 2019); TMEP §1207.01(b).
Here, applicant’s mark “BIOBLOOMGRO” is similar in sound, appearance, and meaning to registrant’s mark “BIOBLOOM”.
The first portion of applicant’s mark “BIOBLOOMGRO” is “BIOBLOOM”, which is identical to the registrant’s mark “BIOBLOOM”. Consumers are generally more inclined to focus on the first word, prefix, or syllable in any trademark or service mark. See Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 1372, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005) (finding similarity between VEUVE ROYALE and two VEUVE CLICQUOT marks in part because “VEUVE . . . remains a ‘prominent feature’ as the first word in the mark and the first word to appear on the label”); Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 876, 23 USPQ2d 1698, 1700 (Fed Cir. 1992) (finding similarity between CENTURY 21 and CENTURY LIFE OF AMERICA in part because “consumers must first notice th[e] identical lead word”); see also In re Detroit Athletic Co., 903 F.3d 1297, 1303, 128 USPQ2d 1047, 1049 (Fed. Cir. 2018) (finding “the identity of the marks’ two initial words is particularly significant because consumers typically notice those words first”). Applicant’s mark “BIOBLOOMGRO” incorporates the entirety of the registrant’s mark “BIOBLOOM”, conveying a highly similar commercial impression. Furthermore, the term “GRO” in the applied-for mark is descriptive of the purpose of the foliar spray concentrate goods, which are used to supplement plant nutrition and growth, rendering the term “GRO” less distinctive in connection to the overall mark. See attached.
Therefore, the marks are confusingly similar.
Relatedness of the Goods/Services
Here, applicant has applied for foliar spray concentrate, which is related to registrant’s chemicals for industrial purposes.
The compared goods need not be identical or even competitive to find a likelihood of confusion. See On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 1086, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000); Recot, Inc. v. Becton, 214 F.3d 1322, 1329, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000); TMEP §1207.01(a)(i). They need only be “related in some manner and/or if the circumstances surrounding their marketing are such that they could give rise to the mistaken belief that [the goods and/or services] emanate from the same source.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1369, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)); TMEP §1207.01(a)(i).
Therefore, the applicant’s goods are related to the registrant’s goods.
Applicant’s mark “BIOBLOOMGRO” is similar to registrant’s mark “BIOBLOOM” in sound, appearance, and meaning. The goods of the parties are also closely related, rendering the marks confusingly similar for purposes of a likelihood of confusion.
How to respond. Click to file a response to this nonfinal Office action.
Alexandra Foster
/Alexandra Foster/
Trademark Examining Attorney
Law Office 117
(571) 272-5111
alexandra.foster1@uspto.gov
RESPONSE GUIDANCE