To: | Ontel Products Corporation (DWTrademarks@dickinson-wright.com) |
Subject: | U.S. Trademark Application Serial No. 90248856 - HYDRO-CHILL TECHNOLOGY - N/A |
Sent: | February 10, 2021 06:25:33 PM |
Sent As: | ecom106@uspto.gov |
Attachments: | Attachment - 1 Attachment - 2 Attachment - 3 Attachment - 4 Attachment - 5 Attachment - 6 Attachment - 7 |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 90248856
Mark: HYDRO-CHILL TECHNOLOGY
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Correspondence Address: 1825 EYE STREET N.W.; SUITE 900
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Applicant: Ontel Products Corporation
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Reference/Docket No. N/A
Correspondence Email Address: |
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SUPPLEMENTAL 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 10, 2021
This Office action is supplemental to and supersedes the previous Office action issued on February 10, 2021 in connection with this application. The assigned trademark examining attorney inadvertently omitted a requirement relevant to the mark in the subject application. See TMEP §§706, 711.02. Specifically, the disclaimer for the term “TECHNOLOGY” is required because it is merely descriptive of a feature of the mark.
The trademark examining attorney apologizes for any inconvenience caused by the delay in raising this issue.
Applicant must address all issues raised in this Office action, in addition to the issues raised in the Office action dated February 10, 2021. The issues raised in the previous February 10, 2021 Office action are as follow and are maintained: Sections 1, 2 and 45 failure to function as trademark refusal, prior pending application advisory and identification and classification of goods.
The following is a SUMMARY OF ISSUES that applicant must address:
• NEW ISSUE: Disclaimer
• Sections 1, 2 and 45 failure to function as trademark
· Identification and classification of goods
Applicant must respond to all issues raised in this Office action and the previous February 10, 2021 Office action, within six (6) months of the date of issuance of this Office action. 37 C.F.R. §2.62(a); see TMEP §711.02. If applicant does not respond within this time limit, the application will be abandoned. 37 C.F.R. §2.65(a).
SEARCH OF USPTO DATABASE OF MARKS
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.
Refusal – Failure to Function as Trademark
The applied-for mark, as shown on the specimen, does not function as a trademark because the proposed mark refers to air cooling technology. It does not identify any goods or products. Applicant’s own website shows the mark ARCTIC AIR on the goods and refers to the proposed mark HYDRO-CHILL TECHNOLOGY as the technology used on the cooling units. Please see attached webpages at http://www.buyarcticairultra.com. An average consumer would perceive the mark ARCTIC AIR as the source indicator, not HYDRO-CHILL TECHNOLOGY.
Not every designation that appears on a product or its packaging functions as a trademark, even though it may have been adopted with the intent to do so. See In re Peace Love World Live, LLC, 127 USPQ2d 1400, 1404 (TTAB 2018) (citing In re Pro-Line Corp., 28 USPQ2d 1141, 1142 (TTAB 1993)). A designation can only be registered when purchasers would be likely to regard it as a source-indicator for the goods. See In re Manco, Inc., 24 USPQ2d 1938, 1941 (TTAB 1992) (citing In re Remington Prods. Inc., 3 USPQ2d 1714, 1715 (TTAB 1987)); TMEP §1202.
Accordingly, registration is refused under Sections 1, 2 and 45.
Identification and Classification of Goods
Applicant may adopt the following identification, if accurate:
INTERNATIONAL CLASS 011: Personal portable humidifier and air purifier in the nature of a cooling device; electric fans and electric personal cooling fans
INTERNATIONAL CLASS 020: Non-electric fans for personal use; hand-held flat fans.
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
The application identifies goods that are classified in at least two classes; however, applicant submitted a fee sufficient for only one 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.
(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 already paid (view the USPTO’s current fee schedule). The application identifies goods that are classified in at least two classes; however, applicant submitted a fee sufficient for only one 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.
Applicant must disclaim the wording “TECHNOLOGY” because it is merely descriptive of an ingredient, quality, characteristic, function, feature, purpose, or use of applicant’s goods and/or services. See 15 U.S.C. §1052(e)(1); DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 1251, 103 USPQ2d 1753, 1755 (Fed. Cir. 2012); TMEP §§1213, 1213.03(a).
The term “TECHNOLOGY” is defined as “the application of science, especially to industrial or commercial objectives” and “the scientific method and material used to achieve a commercial or industrial objective”. It is merely descriptive of a feature of the goods using application of science for cooling.
Applicant may respond to this issue by submitting a disclaimer in the following format:
No claim is made to the exclusive right to use “TECHNOLOGY” apart from the mark as shown.
For an overview of disclaimers and instructions on how to provide one using the Trademark Electronic Application System (TEAS), see the Disclaimer webpage.
A “disclaimer” is a statement in the application record that an applicant does not claim exclusive rights to an unregistrable component of the mark. See Schwarzkopf v. John H. Breck, Inc., 340 F.2d 978, 979-80, 144 USPQ 433, 433 (C.C.P.A. 1965); TMEP §1213. A disclaimer does not physically remove the disclaimed matter from the mark or otherwise affect the appearance of the mark. See Schwarzkopf v. John H. Breck, Inc., 340 F.2d at 979, 144 USPQ2d at 433; TMEP §1213.
How to respond. Click to file a response to this nonfinal Office action.
/Sally Shih/
Trademark Examining Attorney
Law Office 106
United States Patent & Trademark Office
sally.shih@uspto.gov
571-272-9712
RESPONSE GUIDANCE