United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 88961002
Mark: SUNFLOWER
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Correspondence Address: ORRICK, HERRINGTON & SUTCLIFFE LLP
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Applicant: Spero Foods, Inc.
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Reference/Docket No. 38451.6002
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: August 11, 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.
SEARCH OF USPTO DATABASE OF MARKS
SECTION 2(e)(1) REFUSAL - MERELY DESCRIPTIVE
Registration is refused because the applied-for mark merely describes an ingredient of applicant’s goods. Trademark Act Section 2(e)(1), 15 U.S.C. §1052(e)(1); see TMEP §§1209.01(b), 1209.03 et seq. A mark is merely descriptive if it describes an ingredient of an applicant’s goods. TMEP §1209.01(b); see, e.g., In re TriVita, Inc., 783 F.3d 872, 874, 114 USPQ2d 1574, 1575 (Fed. Cir. 2015) (quoting In re Oppedahl & Larson LLP, 373 F.3d 1171, 1173, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004)); In re Steelbuilding.com, 415 F.3d 1293, 1297, 75 USPQ2d 1420, 1421 (Fed. Cir. 2005) (citing Estate of P.D. Beckwith, Inc. v. Comm’r of Patents, 252 U.S. 538, 543 (1920)).
In the instant case, applicant seeks registration of the mark “SUNFLOWER” for use in association with: “Egg substitute; cream cheese substitute; cheese substitutes; non-dairy cheese; plant-based cream cheese; plant-based goat cheese; plant-based egg substitute; non-dairy based whipped topping; non-dairy yogurt; yogurt substitutes; milk substitutes; non-dairy creamer; butter substitute; non-dairy butter substitutes; nut-based butter substitutes; nut butters; seed butters, namely, sunflower, pumpkin, sesame, hemp, chia, and flax seed butters” in International Class 29.
Therefore registration on the Principal Register must be refused under Trademark Act Section 2(e)(1). Although applicant’s mark has been refused registration, applicant may respond to the refusal by submitting evidence and arguments in support of registration. If applicant responds to the refusal, applicant must also respond to the requirement set forth below.
ADVISORY: APPLICATION NOT ELIGIBLE FOR SUPPLEMENTAL REGISTER
If applicant files an acceptable allegation of use and also amends to the Supplemental Register, the application effective filing date will be the date applicant met the minimum filing requirements under 37 C.F.R. §2.76(c) for an amendment to allege use. TMEP §§816.02, 1102.03; see 37 C.F.R. §2.75(b). In addition, the undersigned trademark examining attorney will conduct a new search of the USPTO records for conflicting marks based on the later application filing date. TMEP §§206.01, 1102.03.
IDENTIFICATION OF GOODS – AMENDMENT REQUIRED
The USPTO requires such specificity in order for a trademark examining attorney to examine the application properly and make appropriate decisions concerning possible conflicts between the applicant’s mark and other marks. See In re N.A.D. Inc., 57 USPQ2d 1872, 1874 (TTAB 2000); TMEP §1402.03(d).
Applicant may substitute the following wording, if accurate:
Class 29: Egg substitute; cream cheese substitute; cheese substitutes; non-dairy cheese substitutes; plant-based cream cheese substitutes; plant-based goat cheese substitutes; plant-based egg substitute; non-dairy based whipped topping; non-dairy yogurt; yogurt substitutes; milk substitutes; non-dairy creamer; butter substitute; non-dairy butter substitutes; nut-based butter substitutes; nut butters; seed butters, namely, sunflower, pumpkin, sesame, hemp, chia, and flax seed butters
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.
How to respond. Click to file a response to this nonfinal Office action.
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. Please call or email the assigned trademark examining attorney with questions about this Office action. Although an examining attorney cannot provide legal advice, the examining attorney can provide additional explanation about the refusal(s) and/or requirement(s) in this Office action. See TMEP §§705.02, 709.06.
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.
/Sarah E. Steinpfad/
Sarah E. Steinpfad, Esq.
Trademark Examining Attorney
U.S. Patent and Trademark Office
Law Office 120
571-270-3089
Sarah
RESPONSE GUIDANCE