To: | Whitaker, Lance (summertimerecordsla@gmail.com) |
Subject: | U.S. Trademark Application Serial No. 90012957 - LUNA - N/A |
Sent: | October 08, 2020 10:40:59 AM |
Sent As: | ecom112@uspto.gov |
Attachments: | Attachment - 1 Attachment - 2 Attachment - 3 |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 90012957
Mark: LUNA
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Correspondence Address:
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Applicant: Whitaker, Lance
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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: October 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.
SEARCH OF USPTO DATABASE OF MARKS
PRIOR-FILED 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.
IDENTIFICATION AND CLASSIFICATION OF GOODS AND SERVICES
The identification of services is indefinite and overly broad, as a result, the nature of the services should be clarified for notice and classification purposes. See 37 C.F.R. §2.32(a)(6); TMEP §1402.01. Specifically, “singing artist” must be clarified to indicate the nature of the services for the benefit of others. For example, applicant’s services may consists of live entertainment performances. Additionally, “music” must be clarified to indicate whether the music is downloadable or non-downloadable for notice and classification purposes. See 37 C.F.R. §2.32(a)(6); TMEP §§1402.01, 1402.03.
Applicant may adopt the following if accurate, with changes in bold, guidance in brackets and strikethroughs representing deleted language:
International Class 009: “Digital music downloadable from the internet”
International Class041: “Live entertainment performances by a singing artist; Providing online music, not downloadable”
The application identifies goods and/or services that are classified in at least two (2) classes; however, applicant submitted a fee(s) sufficient for only one (1) class. In a multiple-class application, a fee for each class is required. 37 C.F.R. §2.86(a)(2), (b)(2); TMEP §§810.01, 1403.01. For more information about adding classes to an application, see the Multiple-class Application webpage.
Therefore, applicant must either (1) restrict the application to the number of classes covered by the fees already paid, or (2) submit the fees for each additional class.
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.
MULTIPLE-CLASS APPLICATION REQUIREMENTS
(1) List the goods and/or services by their international class number in consecutive numerical order, starting with the lowest numbered class.
(2) Submit a filing fee for each international class not covered by the fee(s) already paid (view the USPTO’s current fee schedule). The application identifies goods and/or services that are classified in at least two (2) classes; however, applicant submitted a fee(s) sufficient for only one (1) class. Applicant must either submit the filing fees for the classes not covered by the submitted fees or restrict the application to the number of classes covered by the fees already paid.
See 37 C.F.R. §2.86(a); TMEP §§1403.01, 1403.02(c).
For an overview of the requirements for a Section 1(b) multiple-class application and how to satisfy the requirements online using the Trademark Electronic Application System (TEAS) form, see the Multiple-class Application webpage.
ADVISORY- DOES NOT FUNCTION AS A TRADEMARK FOR SOUND RECORDINGS
However, the name of a performing artist or group may be registrable if applicant can satisfy one of the following:
(1) Submit evidence that (a) the name is used on a series of sound recordings, and (b) the name is promoted and recognized by others as the source of the series of sound recordings. See In re Arnold, 105 USPQ2d at 1958; TMEP §1202.09(a)-(a)(ii)(A). Evidence of a series includes copies or photographs of at least two different CD covers or similar packaging for recorded works that show the name sought to be registered. TMEP §1202.09(a)(i); see In re Polar Music Int’l AB, 714 F.2d at 1572, 221 USPQ at 318. Evidence that the name is promoted and recognized by others as a source of the series includes advertising that promotes the name as the source of the series, third-party reviews showing use of the name by others to refer to the series, and/or declarations from the sound recording industry, retailers, and purchasers showing recognition of the name as an indicator of the source of a series of recordings. TMEP §1202.09(a)(ii)(A); cf. In re First Draft, Inc., 76 USPQ2d 1183, 1191 (TTAB 2005); In re Scholastic, Inc., 23 USPQ2d 1774, 1777-78 (TTAB 1992).
(2) Submit evidence that (a) the name is used on a series of sound recordings, and (b) the performer controls the quality of the recordings and controls the use of the name, such that the name has come to represent an assurance of quality to the public. See In re Polar Music Int’l AB, 714 F.2d at 1572, 221 USPQ at 318; In re Arnold, 105 USPQ2d at 1958; TMEP §1202.09(a)-(a)(ii), (a)(ii)(B). Evidence of a series includes copies or photographs of at least two different CD covers or similar packaging for recorded works that show the name sought to be registered. TMEP §1202.09(a)(i); see In re Polar Music Int’l AB, 714 F.2d at 1572, 221 USPQ at 318. Evidence of control over the quality of the recordings and use of the name includes licensing contracts or similar documentation. TMEP §1202.09(a)(ii)(B); see In re Polar Music Int’l AB, 714 F.2d at 1568-72, 221 USPQ at 316-18. However, if the sound recordings are recorded directly under applicant’s control, applicant may submit solely as evidence of control the following statement, verified with an affidavit or signed declaration under 37 C.F.R. §2.20: “The applicant produces the goods and controls their quality.” TMEP §1202.09(a)(ii)(B); see 37 C.F.R. §2.193(e)(1).
(3) Amend the application to seek registration on the Supplemental Register, if an acceptable allegation of use has otherwise been submitted. Trademark Act Section 23, 15 U.S.C. §1091; see 37 C.F.R. §§2.47, 2.75(a); TMEP §§816, 1202.09(a).
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.
/Keisha M. Hardley Jenkins/
Examining Attorney
Law Office 112
571-272-6945
Keisha.Hardley@uspto.gov
RESPONSE GUIDANCE