To: | Adonis Lifestyle, LLC (efrongello@smithlaw.com) |
Subject: | U.S. Trademark Application Serial No. 90218583 - RESURGE - 15631.3 |
Sent: | February 23, 2021 05:40:01 PM |
Sent As: | ecom111@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 Attachment - 12 Attachment - 13 Attachment - 14 Attachment - 15 Attachment - 16 Attachment - 17 |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 90218583
Mark: RESURGE
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Correspondence Address: SMITH ANDERSON BLOUNT DORSETT MITCHELL &
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Applicant: Adonis Lifestyle, LLC
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Reference/Docket No. 15631.3
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: February 23, 2021
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.
Likelihood of Confusion
Registration of the applied-for mark is refused because of a likelihood of confusion with the mark in U.S. Registration No. 5788923. Trademark Act Section 2(d), 15 U.S.C. §1052(d); see TMEP §§1207.01 et seq. See the attached registration.
Applicant applied to register the mark RESURGE for, “dietary and nutritional supplements.”
The registered mark is RESURGENCE for, “vitamins and dietary food supplements.”
Although not all du Pont factors may be relevant, there are generally two key considerations in any likelihood of confusion analysis: (1) the similarities between the compared marks and (2) the relatedness of the compared goods and/or services. See In re i.am.symbolic, llc, 866 F.3d at 1322, 123 USPQ2d at 1747 (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1164-65, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)); Federated Foods, Inc. v. Fort Howard Paper Co.,544 F.2d 1098, 1103, 192 USPQ 24, 29 (C.C.P.A. 1976) (“The fundamental inquiry mandated by [Section] 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods [or services] and differences in the marks.”); TMEP §1207.01.
COMPARISON OF THE MARKS
Marks are compared in their entireties for similarities in appearance, sound, connotation, and commercial impression. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 1321, 110 USPQ2d 1157, 1160 (Fed. Cir. 2014) (quoting Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 1371, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005)); TMEP §1207.01(b)-(b)(v). “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018) (citing In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)), aff’d per curiam, 777 F. App’x 516, 2019 BL 343921 (Fed. Cir. 2019); TMEP §1207.01(b).
In this case, applicant’s mark (RESURGE) is similar to the registered mark (RESURGENCE) because applicant’s mark and the registered mark both include the root word RESURGE. In fact, applicant’s mark is simply the registered mark with the ENCE deleted from applicant’s mark. As such, the marks look alike and sound alike when spoken.
COMPARISON OF THE GOODS
In this case, applicant’s goods and the registrant’s goods namely, “dietary and nutritional supplements” and “vitamins and dietary food supplements,” are related because as the attached Internet stories show, these goods are used to supplement one’s diet, and improve one’s health. Accordingly, consumers encountering the goods of the parties would mistakenly believe the goods originate from a common source.
Registration is therefore refused under Section 2d.
Telephone for Clarification Recommended
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.
/Inga Ervin/
Trademark Examining Attorney
Law Office 111
United States Patent & Trademark Office
571-272-9379
571-273-9379(fax)
Inga.Ervin@uspto.gov
RESPONSE GUIDANCE