PTO- 1957 |
Approved for use through 11/30/2023. OMB 0651-0050 |
U.S. Patent and Trademark Office; U.S. DEPARTMENT OF COMMERCE Under the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless it contains a valid OMB control number |
Input Field |
Entered |
---|---|
SERIAL NUMBER | 88877746 |
LAW OFFICE ASSIGNED | LAW OFFICE 120 |
MARK SECTION | |
MARK | mark |
LITERAL ELEMENT | REVOLT |
STANDARD CHARACTERS | YES |
USPTO-GENERATED IMAGE | YES |
MARK STATEMENT | The mark consists of standard characters, without claim to any particular font style, size or color. |
ARGUMENT(S) | |
U.S. Trademark Reg. App. Serial Number 88/877,746 Mark: REVOLT Remarks with respect to Office Action: Registration was initially refused based upon a likelihood of confusion with respect to U.S. Reg. No. 5,574,951 for a mark "consisting of the word "REVOLT" within a quadrilateral-shaped carrier that resembles the shape of a battery, with the letter "V" in the shape of an EKG line." The Examiner argued that "incorporating the entirety of one mark within another does not obviate the similarity between the compared marks," citing Wella Corp. v. Cal. Concept Corp.., 558 F. 2d 1019, 1022 (C.C.P.A. 1977). However, the more paramount legal analysis starts with the requirement that "it is axiomatic that a mark should not be dissected and considered piecemeal; rather, it must be considered as a whole in determining likelihood of confusion," Massey Junior College, Inc. v. Fashion Institute of Technology, 492 F. 2d 1399, 1402 (C.C.P.A. 1974). In doing so, the similarities and differences in sight, sound, and meaning between the two marks, considering the overall commercial impressions created by the marks, rather than merely individual features, must be taken into account. General Mills, Inc. v. Kellogg Co., 824 F. 2d 622 (8th Cir. 1987). In the present case, the ‘951 mark immediately conveys the visual and meaning impression of dry cell-type batteries, as well as that electrical current is involved (separating the "re" from the "volt" portion of the work by the distinctive V), particularly for putting "life" into something (à la the EKG format). In short, battery charging comes to mind. In contrast, the present application conveys merely the dictionary meanings of the word REVOLT: rising in rebellion, doing something different than the conventional; putting an end to something which is unduly limiting, for example. Thus, the marks create diverse commercial impressions and should not be considered similar. The Examiner asserted that "the attached Internet evidence from AutoZone.com . . . establishes that the same entity commonly provides the relevant or similar goods. . ." That evidence does not do so. None of the references show the Applicant’s goods or goods similar thereto. This error may have arisen from the Examiner’s misunderstanding of the Applicant’s goods. For example, in the Office Action the Examiner suggested that the description of goods be amended so as to state that the electric power generation systems . . . [were] . . for use in service OF vehicles" (emphasis added). However, the Applicant’s goods are for use BY vehicles and IN vehicles but not for service OF vehicles. The Applicant’s goods are not batteries and do not include batteries. Indeed, the compressors typically being run by the Applicant’s products cannot be powered by conventional batteries in any practical sense, due to the substantially greater power demands of those devices. The description of goods has been amended so as to clarify this distinction. Thus, the goods to which the respective marks are applied should not be considered sufficiently related. Therefore, the two key considerations relied upon by the Examiner do not support the rejection, and that rejection should be withdrawn, and this case passed to publication. It is the Applicant's understanding that the goods listed by this amendment are only those appropriate in International Class 9. Accordingly, the requirement for multi-class registration is respectfully traversed. |
|
GOODS AND/OR SERVICES SECTION (current) | |
INTERNATIONAL CLASS | 009 |
DESCRIPTION | |
Electrical power generation systems for use in service vehicles, to run compressors and electrical power driven equipment mounted or stored within the vehicle | |
FILING BASIS | Section 1(b) |
GOODS AND/OR SERVICES SECTION (proposed) | |
INTERNATIONAL CLASS | 009 |
TRACKED TEXT DESCRIPTION | |
FINAL DESCRIPTION | |
Electrical power generation systems, comprised of a vehicle mountable electric power source having one or more alternators in series which provide electricity to a power distribution panel, for use in service vehicles, to run compressors and electrical power driven equipment mounted or stored within the vehicle | |
WEBPAGE URL | None Provided |
WEBPAGE DATE OF ACCESS | None Provided |
FILING BASIS | Section 1(b) |
CORRESPONDENCE INFORMATION (current) | |
NAME | RYAN M. FOUNTAIN |
PRIMARY EMAIL ADDRESS FOR CORRESPONDENCE | RyanFountain@aol.com |
SECONDARY EMAIL ADDRESS(ES) (COURTESY COPIES) | NOT PROVIDED |
CORRESPONDENCE INFORMATION (proposed) | |
NAME | Ryan M. Fountain |
PRIMARY EMAIL ADDRESS FOR CORRESPONDENCE | RyanFountain@aol.com |
SECONDARY EMAIL ADDRESS(ES) (COURTESY COPIES) | NOT PROVIDED |
SIGNATURE SECTION | |
RESPONSE SIGNATURE | /Ryan M. Fountain/ |
SIGNATORY'S NAME | Ryan M. Fountain |
SIGNATORY'S POSITION | Attorney of record, Indiana Bar member |
SIGNATORY'S PHONE NUMBER | 574-258-9296 |
DATE SIGNED | 01/19/2021 |
ROLE OF AUTHORIZED SIGNATORY | Authorized U.S.-Licensed Attorney |
SIGNATURE METHOD | Signed directly within the form |
FILING INFORMATION SECTION | |
SUBMIT DATE | Tue Jan 19 20:25:27 ET 2021 |
TEAS STAMP | USPTO/ROA-XXXX:XXX:XXXX:X XXX:XXXX:XXXX:XXXX:XXXX-2 0210119202527391705-88877 746-760714944b78645fb4de8 e7b424842b7958231113dccd2 6a87dac291d76999f9d-N/A-N /A-20210119200924393619 |
PTO- 1957 |
Approved for use through 11/30/2023. OMB 0651-0050 |
U.S. Patent and Trademark Office; U.S. DEPARTMENT OF COMMERCE Under the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless it contains a valid OMB control number |
U.S. Trademark Reg. App. Serial Number 88/877,746
Mark: REVOLT
Remarks with respect to Office Action:
Registration was initially refused based upon a likelihood of confusion with respect to U.S. Reg. No. 5,574,951 for a mark "consisting of the word "REVOLT" within a quadrilateral-shaped carrier that resembles the shape of a battery, with the letter "V" in the shape of an EKG line." The Examiner argued that "incorporating the entirety of one mark within another does not obviate the similarity between the compared marks," citing Wella Corp. v. Cal. Concept Corp.., 558 F. 2d 1019, 1022 (C.C.P.A. 1977). However, the more paramount legal analysis starts with the requirement that "it is axiomatic that a mark should not be dissected and considered piecemeal; rather, it must be considered as a whole in determining likelihood of confusion," Massey Junior College, Inc. v. Fashion Institute of Technology, 492 F. 2d 1399, 1402 (C.C.P.A. 1974). In doing so, the similarities and differences in sight, sound, and meaning between the two marks, considering the overall commercial impressions created by the marks, rather than merely individual features, must be taken into account. General Mills, Inc. v. Kellogg Co., 824 F. 2d 622 (8th Cir. 1987).
In the present case, the ‘951 mark immediately conveys the visual and meaning impression of dry cell-type batteries, as well as that electrical current is involved (separating the "re" from the "volt" portion of the work by the distinctive V), particularly for putting "life" into something (à la the EKG format). In short, battery charging comes to mind. In contrast, the present application conveys merely the dictionary meanings of the word REVOLT: rising in rebellion, doing something different than the conventional; putting an end to something which is unduly limiting, for example. Thus, the marks create diverse commercial impressions and should not be considered similar.
The Examiner asserted that "the attached Internet evidence from AutoZone.com . . . establishes that the same entity commonly provides the relevant or similar goods. . ." That evidence does not do so. None of the references show the Applicant’s goods or goods similar thereto. This error may have arisen from the Examiner’s misunderstanding of the Applicant’s goods. For example, in the Office Action the Examiner suggested that the description of goods be amended so as to state that the electric power generation systems . . . [were] . . for use in service OF vehicles" (emphasis added). However, the Applicant’s goods are for use BY vehicles and IN vehicles but not for service OF vehicles. The Applicant’s goods are not batteries and do not include batteries. Indeed, the compressors typically being run by the Applicant’s products cannot be powered by conventional batteries in any practical sense, due to the substantially greater power demands of those devices. The description of goods has been amended so as to clarify this distinction. Thus, the goods to which the respective marks are applied should not be considered sufficiently related.
Therefore, the two key considerations relied upon by the Examiner do not support the rejection, and that rejection should be withdrawn, and this case passed to publication.
It is the Applicant's understanding that the goods listed by this amendment are only those appropriate in International Class 9. Accordingly, the requirement for multi-class registration is respectfully traversed.