To: | Jiang Hongxun (alichy@lichylaw.com) |
Subject: | U.S. Trademark Application Serial No. 90120649 - IT'S A BEAUTIFUL DAY TO LEAVE ME - JCIPO |
Sent: | December 21, 2020 03:19:22 PM |
Sent As: | ecom109@uspto.gov |
Attachments: | Attachment - 1 Attachment - 2 Attachment - 3 Attachment - 4 Attachment - 5 Attachment - 6 Attachment - 7 Attachment - 8 Attachment - 9 Attachment - 10 Attachment - 11 |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 90120649
Mark: IT'S A BEAUTIFUL DAY TO LEAVE ME
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Correspondence Address:
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Applicant: Jiang Hongxun
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Reference/Docket No. JCIPO
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: December 21, 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
SECTIONS 1, 2, AND 45 REFUSAL – MARK FAILS TO FUNCTION AS WIDELY-USED OR COMMONPLACE MESSAGE OR EXPRESSION
Registration is refused because the applied-for mark is a slogan or term that does not function as a trademark or service mark to indicate the source of applicant’s goods and/or services and to identify and distinguish them from others. Trademark Act Sections 1, 2, 3, and 45, 15 U.S.C. §§1051-1053, 1127. In this case, the applied-for mark is a commonplace term, message, or expression widely used by a variety of sources that merely conveys an ordinary, familiar, well-recognized concept or sentiment. See In re Wal-Mart Stores, Inc., 129 USPQ2d 1148, 1160 (TTAB 2019) (holding INVESTING IN AMERICAN JOBS not registrable for retail store services or promoting public awareness of goods made or assembled by American workers because the mark would be perceived merely as a commonly-used informational message); In re Volvo Cars of N. Am., Inc., 46 USPQ2d 1455, 1460-61 (TTAB 1998) (holding DRIVE SAFELY not registrable for automobiles and automobile parts because the mark would be perceived merely as an “everyday, commonplace safety admonition”).
Terms and expressions that merely convey an informational message are not registrable. In re Eagle Crest, Inc., 96 USPQ2d 1227, 1229 (TTAB 2010). Determining whether the term or expression functions as a trademark or service mark depends on how it would be perceived by the relevant public. In re Wal-Mart Stores, Inc., 129 USPQ2d at 1150 (citing D.C. One Wholesaler, Inc. v. Chien, 120 USPQ2d 1710, 1713 (TTAB 2016)); In re Eagle Crest, Inc., 96 USPQ2d at 1229; TMEP §1202.04. “The more commonly a [term or expression] is used, the less likely that the public will use it to identify only one source and the less likely that it will be recognized by purchasers as a trademark [or service mark].” In re Hulting, 107 USPQ2d 1175, 1177 (TTAB 2013) (quoting In re Eagle Crest, Inc., 96 USPQ2d at 1229); TMEP §1202.04(b).
The attached evidence from http://www.abadinfluence.com/products/its-a-beautiful-day-to-leave-me-alone;http://www.amazon.com/Its-beautiful-leave-alone-T-shirt/dp/B07PG3K62M; http://dreamerstore.net/products/its-a-beautiful-day-to-leave-me-alone-t-shirt; http://www.etsy.com/listing/505023883/its-a-beautiful-day-to-leave-me-alone-t; http://www.lookhuman.com/design/23477-it-s-a-beautiful-day-to-leave-me-alone/tank-top; http://www.redbubble.com/shop/its+a+beautiful+day+to+leave+me+alone+t-shirts; http://www.walmart.com/ip/Thread-Tank-It-s-A-Beautiful-Day-To-Leave-Me-Alone-Women-s-Fashion-Relaxed-Crewneck-T-Shirt-Tee-Heather-Tan-2X-Large/574045230; and http://www.whatonearthcatalog.com/CY9251.html shows that this term or expression is commonly used to describe a beautiful day being one where no one bothers the person and conveys a common quote with an amusing implication. See http://idioms.thefreedictionary.com/Leave+me+alone!#:~:text=To%20not%20interact%20with%20or,Leave%20her%20alone and http://www.pinterest.com/pin/209347082663175191/.
Because consumers are accustomed to seeing this term or expression commonly used in everyday speech by many different sources, they would not perceive it as a mark identifying the source of applicant’s goods and/or services but rather as only conveying an informational message.
An applicant may not overcome this refusal by amending the application to seek registration on the Supplemental Register or asserting a claim of acquired distinctiveness under Section 2(f). TMEP §1202.04(d); see In re Eagle Crest, Inc., 96 USPQ2d at 1229. Nor will submitting a substitute specimen overcome this refusal. See TMEP §1202.04(d).
“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.
Gillani, Mahreen
Mahreen Gillani
Trademark Examining Attorney
Law Office 109, USPTO
(571)272-9704
Mahreen.Gillani@uspto.gov
RESPONSE GUIDANCE