To: | Measure Inc. (troymailroom@hdp.com) |
Subject: | U.S. Trademark Application Serial No. 90356321 - UVMASK PRO - 18723-200002 |
Sent: | May 28, 2021 11:52:16 AM |
Sent As: | ecom116@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 Attachment - 18 Attachment - 19 Attachment - 20 Attachment - 21 Attachment - 22 Attachment - 23 Attachment - 24 Attachment - 25 Attachment - 26 Attachment - 27 Attachment - 28 Attachment - 29 Attachment - 30 Attachment - 31 Attachment - 32 Attachment - 33 Attachment - 34 Attachment - 35 Attachment - 36 Attachment - 37 Attachment - 38 Attachment - 39 Attachment - 40 Attachment - 41 Attachment - 42 Attachment - 43 |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 90356321
Mark: UVMASK PRO
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Correspondence Address: |
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Applicant: Measure Inc.
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Reference/Docket No. 18723-200002
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 28, 2021
The referenced application has been reviewed by the assigned trademark examining attorney.
Search results
Moreover, the applicant must respond timely and completely to the issues below. 15 U.S.C. §1062(b); 37 C.F.R. §§2.62(a), 2.65(a); TMEP §§711, 718.03.
I. SECTION 2(E)(1) REFUSAL - merely descriptive
A mark is merely descriptive if it describes an ingredient, quality, characteristic, function, feature, purpose, or use of an applicant’s goods. TMEP §1209.01(b); see, e.g., In re TriVita, Inc., 783 F.3d 872, 874, 114 USPQ2d 1574, 1575 (Fed. Cir. 2015) (quoting In re Oppedahl & Larson LLP, 373 F.3d 1171, 1173, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004)); In re Steelbuilding.com, 415 F.3d 1293, 1297, 75 USPQ2d 1420, 1421 (Fed. Cir. 2005) (citing Estate of P.D. Beckwith, Inc. v. Comm’r of Patents, 252 U.S. 538, 543 (1920)). The applicant’s “face masks” presumably include pro or professional grade face masks, or face masks specifically designed for professionals, that provide sanitary UV or ultra-violent protection, i.e. pro or professional UV masks. Accordingly, the combined wording UVMASK PRO is merely descriptive in relation to the goods identified. Please note that the determination of whether a mark is merely descriptive is always made in relation to an applicant’s goods, not in the abstract. DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 1254, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012); In re The Chamber of Commerce of the U.S., 675 F.3d 1297, 1300, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012); TMEP §1209.01(b). “Whether consumers could guess what the product [or service] is from consideration of the mark alone is not the test.” In re Am. Greetings Corp., 226 USPQ 365, 366 (TTAB 1985).
In support of the stated refusal, please see the attached relevant definitions of UV (“ultraviolet”), MASK (“(a) protective covering for the face or head”), PRO (“professional”), professional (“a very high standard” or “relating to a person’s work, especially work that requires special training”) and grade (“a position or degree in a scale, as of quality, rank, size, or progression: small-grade eggs; high-grade timber”) in this regard. See also the attached relevant Internet evidence specifically referring to UV masks and pro or professional masks in trade. For example, see the attached Internet excerpt from ceoutlook.com in this regard stating:
“At that time, it will also deliver new UV masks that are worn under a cloth or N95 mask. The UV masks have embedded LEDs that both sanitize the top mask and add to its filtering capability.”
See also the attached Internet excerpt from drmabaso.com stating:
“The antiviral agents used include ultraviolet light in UV Masks, antiviral chemicals like copper salts and phosphoric acid, and the use of silver technology in mask materials.”
See also the attached Internet excerpt regarding Cleanxa brand professional face masks offered in trade. See also the attached Internet excerpt regarding the WellMed Pro face mask offered in trade. See also the attached Internet excerpt regarding Schampa’s Urban Pro face mask “designed for professionals” offered in trade, among others.
Only where the combination of descriptive terms creates a unitary mark with a unique, incongruous, or otherwise nondescriptive meaning in relation to the goods is the combined mark registrable. See In re Colonial Stores, Inc., 394 F.2d 549, 551, 157 USPQ 382, 384 (C.C.P.A. 1968); In re Positec Grp. Ltd., 108 USPQ2d 1161, 1162-63 (TTAB 2013).
In this case, both the individual components, UVMASK and PRO, and the composite result, UVMASK PRO, are descriptive of applicant’s goods and do not create a unique, incongruous, or nondescriptive meaning in relation thereto.
II. POTENTIAL SECTION 2(D) REFUSAL
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.
III. RESPONSE TO A NON-FINAL ACTION
If applicant files an acceptable allegation of use and also amends to the Supplemental Register, the application effective filing date will be the date applicant met the minimum filing requirements under 37 C.F.R. §2.76(c) for an amendment to allege use. TMEP §§816.02, 1102.03; see 37 C.F.R. §2.75(b). In addition, the undersigned trademark examining attorney will conduct a new search of the USPTO records for conflicting marks based on the later application filing date. TMEP §§206.01, 1102.03.
How to respond. Click to file a response to this nonfinal Office action.
/Zhaleh Delaney/
Trademark Attorney
Trademark Law Office 116
(571) 272-9153
Zhaleh.Delaney@uspto.gov
RESPONSE GUIDANCE