To: | HARTMANN, Daniel P. (tm@hueschen-sage.us) |
Subject: | U.S. Trademark Application Serial No. 90042301 - GALAXY - HARTMANN F 1 |
Sent: | May 17, 2021 11:13:15 AM |
Sent As: | ecom110@uspto.gov |
Attachments: |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 90042301
Mark: GALAXY
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Correspondence Address: |
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Applicant: HARTMANN, Daniel P.
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Reference/Docket No. HARTMANN F 1
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: May 17, 2021
This Office action is in response to applicant’s communication filed on April 23, 2021.
In a previous Office action dated October 23, 2020, the trademark examining attorney required applicant to satisfy the following requirement: varietal name information request.
Based on applicant’s response, see the new refusal and requirement below.
SUMMARY OF ISSUES:
REFUSAL – APPLIED-FOR MARK IS A VARIETAL NAME
Registration is refused because the applied-for mark is a varietal name for the identified goods and, thus, does not function as a trademark to indicate the source of applicant’s goods and to identify and distinguish them from others. Trademark Act Sections 1, 2, and 45, 15 U.S.C. §§1051-1052, 1127; see TMEP §1202.12.
Varietal or cultivar names are designations used to identify cultivated varieties or subspecies of live plants or agricultural seeds. TMEP §1202.12. They are generic and cannot be registered as trademarks because they are the common descriptive names of plants or seeds by which such varieties are known to the U.S. consumer. Id. Moreover, a consumer “has to have some common descriptive name he can use to indicate that he wants one [particular] variety of apple tree, rose, or whatever, as opposed to another, and it is the varietal name of the strain which naturally and commonly serves this purpose.” In re Pennington Seed, Inc., 466 F.3d 1053, 1057, 80 USPQ2d 1758, 1761 (Fed. Cir. 2006) (quoting In re Hilltop Orchards & Nurseries, Inc., 206 USPQ 1034, 1036 (TTAB 1979)); see In re Delta & Pine Land Co., 26 USPQ2d 1157, 1159 n.4 (TTAB 1993).
Applicant’s response states:
Applicant advises GALAXY is not used nor will it be used as a varietal or cultivar name. Applicant advises GALAXY is not used in connection with a plant patent, utility patent, or certificate for plant variety protection. GALAXY is a trademark for Blueberry variety CAU-01, which variety is the subject of US Plant Patent Application Serial No. 16/941,986.
Although GALAXY is not yet officially “used” as a varietal or cultivar designation, based on the U.S. Plant Patent application, it is intended to be.
Therefore, registration is refused.
REQUEST FOR INFORMATION
Failure to comply with a request for information is grounds for refusing registration. In re Harley, 119 USPQ2d 1755, 1757-58 (TTAB 2016); TMEP §814.
How to respond. Click to file a response to this nonfinal Office action.
/Tricia Sonneborn/
Examining Attorney – Law Office 110
United States Patent & Trademark Office
(571) 272-9225
tricia.sonneborn@uspto.gov
RESPONSE GUIDANCE