Offc Action Outgoing

United States Patent and Trademark Office (USPTO)

Office Action (Official Letter) About Applicant’s Trademark Application

 

 

 

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 28, 2020

 

 

The referenced application has been reviewed by the assigned trademark examining attorney.  Applicant must respond timely and completely to the issues 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

 

The trademark examining attorney searched the USPTO database of registered and pending marks and found no conflicting marks that would bar registration under Trademark Act Section 2(d).  15 U.S.C. §1052(d); TMEP §704.02.

 

SUMMARY OF ISSUES:

• INDEFINITE AND OVERLY BROAD IDENTIFICATION OF GOODS AND SERVICES – AMENDMENT REQUIRED
• CLARIFICATION REQUIRED REGARDING THE NUMBER OF CLASSES FOR WHICH REGISTRATION IS SOUGHT

 

INDEFINITE AND OVERLY BROAD IDENTIFICATION OF GOODS AND SERVICES – AMENDMENT REQUIRED

 

The wording “protein bars,” “fruit based food,” “or other beneficial functional ingredients,” “the bringing together, for the benefit of others, of a variety of locally grown food enabling customers to conveniently view and purchase the food through a community supported agriculture program” in the identification of goods and services is indefinite and must be clarified because applicant has not specified the precise nature of the goods and services.  See 37 C.F.R. §2.32(a)(6); TMEP §1402.01.

 

The wording “vegan, vegetarian and plant-based snack foods, “vegan, vegetarian and plant-based snack bars,” “soy-free snack foods,” “dairy-free snack foods,” “dairy-free snack bars,” “gluten-free snack foods,” and “gluten-free snack bars” in the identification of goods must be clarified because it is too broad and could include goods in other international classes.  See 37 C.F.R. §2.32(a)(6); TMEP §§1402.01, 1402.03.  In particular, this wording could encompass soy-based snack foods in Class 29, rice-based snack foods in Class 30, and fresh oranges in Class 31, which is a gluten-free snack food.

 

Applicant may substitute the following wording, if accurate:

 

Class 05—      Dietary supplements, namely, protein bars being protein supplements formed and packaged as bars; nutritional supplements; dietary supplements; nutritional supplements formed and packaged as bars for low FODMAP diet; nutritional supplement meal replacement bars for boosting energy

 

Class 29—      Fruit-based snack food; fruit-based snack food formed and packaged as bars; fruit-based snack foods containing plant-based proteins; fruit-based snack foods formed and packaged as bars containing plant-based proteins; fruit-based snack foods containing animal-based protein; fruit-based snack foods formed and packaged as bars containing animal-based protein; fruit-based snack foods containing probiotics, supplements, proteins, vitamins, minerals, nutraceuticals, and other beneficial functional ingredients in the form of [specify, e.g., fiber, etc.]; fruit-based snack foods formed and packaged as bars containing probiotics, supplements, proteins, vitamins, minerals, nutraceuticals, and other beneficial functional ingredients in the form of [specify, e.g., fiber, etc.]; vegan, vegetarian and plant-based snack foods, namely, [specify, e.g., vegetable-based snack foods, etc.]; vegan, vegetarian and plant-based snack bars, namely, [specify, e.g., vegetable-based snack foods formed and packaged as bars, etc.]; nut-based snack foods; nut-based snack bars; seed-based snack foods; seed-based snack bars; soy-free snack foods, namely, [specify, e.g., meat-based snack foods, etc.]; soy-based snack foods formed and packaged as bars; dairy-free snack bars, namely, [specify, e.g., vegetable-based snack foods formed and packaged as bars, etc.]; dairy-free snack foods, namely, [specify, e.g., vegetable-based snack foods formed and packaged as bars, etc.]; gluten-free snack foods, namely, [specify, e.g., vegetable-based snack foods formed and packaged as bars, etc.]; gluten-free snack bars, namely, [specify, e.g., vegetable-based snack foods formed and packaged as bars, etc.]; fruit and vegetable-based snack foods containing probiotics, supplements, proteins, vitamins, minerals, nutraceuticals, and other beneficial functional ingredients in the form of [specify, e.g., fiber, etc.]; fruit and vegetable-based snack foods formed and packaged as bars containing probiotics, supplements, proteins, vitamins, minerals, nutraceuticals, and other beneficial functional ingredients in the form of [specify, e.g., fiber, etc.]

 

Class 30—      Chocolate-based snack foods; chocolate-based snack food formed and packaged as bars; granola-based snack foods; granola-based snack bars

 

Class 35—      Online retail store services featuring dietary and nutritional supplements, protein snacks, protein bars, snack foods and snack bars; charitable services, namely, organizing and conducting volunteer programs and community service projects aimed at establishing and managing community agriculture programs; retail store services featuring locally grown produce; advertising, marketing and promotion services in the field of local area farmers and locally grown food; the bringing together, for the benefit of others, of a variety of locally grown food, excluding the transport thereof, enabling customers to conveniently view and purchase the food through a community supported agriculture program

 

Class 41—       On-line journals, namely, blogs featuring information about plant-based living, vegan lifestyle, health, disease awareness, fair trade, recycling, agriculture, conservation, charitable giving, and social and environmental sustainability

 

SCOPE ADVISORY

 

Applicant may amend the identification to clarify or limit the goods and services, but not to broaden or expand the goods and services beyond those in the original application or as acceptably amended.  See 37 C.F.R. §2.71(a); TMEP §1402.06.  Generally, any deleted goods and services may not later be reinserted.  See TMEP §1402.07(e).

 

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.

 

CLARIFICATION REQUIRED REGARDING THE NUMBER OF CLASSES FOR WHICH REGISTRATION IS SOUGHT

 

The application references goods and services based on use in commerce in more than one international class; therefore, applicant must satisfy all the requirements below for each international class:

 

(1)        List the goods and services by their international class number in consecutive numerical order, starting with the lowest numbered class (for example, International Class 3: perfume; International Class 18: cosmetic bags sold empty).

 

(2)        Submit a filing fee for each international class not covered by the fee already paid (view the USPTO’s current fee schedule).  Specifically, the application identifies goods and services based on use in commerce that are classified in at least 6 classes; however, applicant submitted a fee sufficient for only 5 classes.  Applicant must either (a) submit the filing fees for the classes not covered by the submitted fees or (b) restrict the application to the number of classes covered by the fees already paid.

 

(3)        Submit verified dates of first use of the mark anywhere and in commerce for each international class.  See more information about verified dates of use.

 

(4)        Submit a specimen for each international class.  The current specimen is acceptable for Classes 05, 29, 30, 35, and 41.  Applicant would need an additional specimen for Class 31.  See more information about specimens.

 

Examples of specimens.  Specimens for goods include a photograph of (1) the actual goods bearing the mark; (2) an actual container, packaging, tag or label for the goods bearing the mark; or (3) a point-of-sale display showing the mark directly associated with the goods.  See 37 C.F.R. §2.56(b)(1), (c); TMEP §904.03(a)-(m).  A webpage specimen submitted as a display associated with the goods must show the mark in association with a picture or textual description of the goods and include information necessary for ordering the goods.  TMEP §904.03(i); see 37 C.F.R. §2.56(b)(1), (c). 

 

Specimens for services must show a direct association between the mark and the services and include:  (1) copies of advertising and marketing material, (2) a photograph of business signage or billboards, or (3) materials showing the mark in the sale, rendering, or advertising of the services.  See 37 C.F.R. §2.56(b)(2), (c); TMEP §1301.04(a), (h)(iv)(C). 

 

Any webpage printout or screenshot submitted as a specimen, whether for goods or services, must include the webpage’s URL and the date it was accessed or printed.  37 C.F.R. §2.56(c).

 

(5)        Submit a verified statement that “The specimen was in use in commerce on or in connection with the goods and/or services listed in the application at least as early as the filing date of the application.”  See more information about verification.

 

See 37 C.F.R. §2.86(a); TMEP §§1403.01, 1403.02(c).

 

For an overview of the requirements for a Section 1(a) multiple-class application and how to satisfy the requirements online using the Trademark Electronic Application System (TEAS) form, see the Multiple-class Application webpage.

 

Responding to this office action

 

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.

 

 

 

How to respond.  Click to file a response to this nonfinal Office action.    

 

 

/Jesse Nelman/

Jesse Nelman

Examining Attorney

Law Office 113

(571) 272-0191

jesse.nelman@uspto.gov

 

 

RESPONSE GUIDANCE

• Missing the response deadline to this letter will cause the application to abandon.  A response or notice of appeal must be received by the USPTO before midnight Eastern Time of the last day of the response period.  TEAS and ESTTA maintenance or unforeseen circumstances could affect an applicant’s ability to timely respond.  

 

• Responses signed by an unauthorized party are not accepted and can cause the application to abandon.  If applicant does not have an attorney, the response must be signed by the individual applicant, all joint applicants, or someone with legal authority to bind a juristic applicant.  If applicant has an attorney, the response must be signed by the attorney.

 

• If needed, find contact information for the supervisor of the office or unit listed in the signature block.

 

United States Patent and Trademark Office (USPTO)

 

USPTO OFFICIAL NOTICE

 

Office Action (Official Letter) has issued

on June 28, 2020 for

U.S. Trademark Application Serial No. 88861474

 

Your trademark application has been reviewed by a trademark examining attorney.  As part of that review, the assigned attorney has issued an official letter that you must respond to by the specified deadline or your application will be abandoned.  Please follow the steps below.

 

(1)  Read the official letter.

 

(2)  Direct questions about the contents of the Office action to the assigned attorney below. 

 

 

/Jesse Nelman/

Jesse Nelman

Examining Attorney

Law Office 113

(571) 272-0191

jesse.nelman@uspto.gov

 

Direct questions about navigating USPTO electronic forms, the USPTO website, the application process, the status of your application, and/or whether there are outstanding deadlines or documents related to your file to the Trademark Assistance Center (TAC).

 

(3)  Respond within 6 months (or earlier, if required in the Office action) from June 28, 2020, using the Trademark Electronic Application System (TEAS).  The response must be received by the USPTO before midnight Eastern Time of the last day of the response period.  See the Office action for more information about how to respond

 

 

 

GENERAL GUIDANCE

·         Check the status of your application periodically in the Trademark Status & Document Retrieval (TSDR) database to avoid missing critical deadlines.

 

·         Update your correspondence email address, if needed, to ensure you receive important USPTO notices about your application.

 

·         Beware of misleading notices sent by private companies about your application.  Private companies not associated with the USPTO use public information available in trademark registrations to mail and email trademark-related offers and notices – most of which require fees.  All official USPTO correspondence will only be emailed from the domain “@uspto.gov.”