To: | Silverstein, Michael (jared@starkweber.com) |
Subject: | U.S. Trademark Application Serial No. 88843270 - BILLIONAIRE ENERGY DRINK - N/A |
Sent: | June 17, 2020 09:36:09 AM |
Sent As: | ecom128@uspto.gov |
Attachments: | Attachment - 1 Attachment - 2 Attachment - 3 Attachment - 4 Attachment - 5 Attachment - 6 Attachment - 7 Attachment - 8 Attachment - 9 |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88843270
Mark: BILLIONAIRE ENERGY DRINK
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Correspondence Address:
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Applicant: Silverstein, Michael
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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: June 17, 2020
Introduction
Search of USPTO Database of Marks – Prior-Filed Pending Application
In response to this Office action, applicant may present arguments in support of registration by addressing the issue of the potential conflict between applicant’s mark and the mark in the referenced application. Applicant’s election not to submit arguments at this time in no way limits applicant’s right to address this issue later if a refusal under Section 2(d) issues.
Applicant must disclaim “ENERGY DRINK” because it is merely descriptive of an ingredient, quality, characteristic, function, feature, purpose, or use of applicant’s goods and/or services. See 15 U.S.C. §1052(e)(1); DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 1251, 103 USPQ2d 1753, 1755 (Fed. Cir. 2012); TMEP §§1213, 1213.03(a).
The attached evidence from Merriam-Webster shows this wording means “a usually carbonated beverage that typically contains caffeine and other ingredients (such as taurine and ginseng) intended to increase the drinker's energy”. Thus, the wording merely describes applicant’s goods because applicant’s goods are energy drinks.
Applicant may respond to this issue by submitting a disclaimer in the following format:
No claim is made to the exclusive right to use “ENERGY DRINK” apart from the mark as shown.
For an overview of disclaimers and instructions on how to provide one using the Trademark Electronic Application System (TEAS), see the Disclaimer webpage.
Conclusion
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.
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.
Arriola, Kimberly
/Kimberly C. Arriola/
Attorney Advisor
Law Office 128
(571) 270-7984
kimberly.arriola@uspto.gov
RESPONSE GUIDANCE