Response to Office Action

PTO- 1957

Approved for use through 11/30/2023. OMB 0651-0050

U.S. Patent and Trademark Office; U.S. DEPARTMENT OF COMMERCE Under the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless it contains a valid OMB control number

---

PTO- 1957

Approved for use through 11/30/2023. OMB 0651-0050

U.S. Patent and Trademark Office; U.S. DEPARTMENT OF COMMERCE Under the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless it contains a valid OMB control number

Response to Office Action

To the Commissioner for Trademarks:

Application serial no. 90503385 TECTON(Standard Characters, see http://uspto.report/TM/90503385/mark.png) has been amended as follows:

ARGUMENT(S)
In response to the substantive refusal(s), please note the following:

Regarding Likelihood of Confusion with U.S. Registration No. 5176760 - TECTONIC WATER, Applicant has done numerous searches using Google and DuckDuckGo - none of which results in any results. (Other water products appear) Searching the owners web site shows no use of the mark on the main page and the site appears not to have been updated in 5 years (Copyright 2016). The one image that is found on a lower pages doesn't even use the circle R. Using Google Maps, there is no signage at the indicated address of the owner of the mark and the current Applicant's attorney has not recieved a response from a query on their website. This mark does not not appear to be in current use. Regarding Likelihood of Confusion with U.S. Registration No 6059899 - the goods are non-overlapping. The Applicants beverage merely has ketone supplements added in some versions of the beverage (not sold separately or on their own). The channels of sales and marketing are not overlap. Furthermore, the Registrant of No 6059899 has distinctive markings which further distinguish the goods. Applicant is not in the business of selling vitamins, supplements or herbs such as the owner of No 6059899. In the event that examiner is not pursuaded, Applicant would be willing to remove references to suppliments. While the cited marks appear to be facially similar, for the above reasons, we do not believe that any consumers will be confused about the source of the goods. All of the associated products are distinctive in appearance and the Applicant will be aggresively building brand recognition. Additionally, the cited companies will have opportunities to object to applicants mark.

CLASSIFICATION AND LISTING OF GOODS/SERVICES

Applicant proposes to amend the following:

Current:
Class 032 for Non-alcoholic beverages, namely, carbonated beverages; Non-alcoholic carbonated beverages; Non-alcoholic essences for making non-alcoholic beverages, not in the nature of essential oils; Non-alcoholic water-based beverages also containing ketone supplements; Syrups for making beverages; Syrups for making non-alcoholic beverages
Filing Basis: Section 1(a), Use in Commerce: The applicant is using the mark in commerce, or the applicant's related company or licensee is using the mark in commerce, on or in connection with the identified goods and/or services. 15 U.S.C. Section 1051(a), as amended. The mark was first used at least as early as 01/28/2021 and first used in commerce at least as early as 01/28/2021 , and is now in use in such commerce.


Proposed:
Class 032 for Non-alcoholic beverages, namely, carbonated beverages; Non-alcoholic carbonated beverages; Non-alcoholic essences for making non-alcoholic beverages, not in the nature of essential oils; Non-alcoholic water-based beverages also containing ketone supplements; Syrups for making beverages; Syrups for making non-alcoholic beverages
Filing Basis: Section 1(a), Use in Commerce: The applicant is using the mark in commerce, or the applicant's related company or licensee is using the mark in commerce, on or in connection with the identified goods and/or services. 15 U.S.C. Section 1051(a), as amended. The mark was first used at least as early as 01/28/2021 and first used in commerce at least as early as 01/28/2021 , and is now in use in such commerce.
Applicant hereby submits one(or more) specimen(s) for Class 032. The specimen(s) submitted consists of specimen shows the mark as used on a carbonated and/or non-alcoholic ?beverage.?.
"The substitute (or new, or originally submitted, if appropriate) specimen(s) was/were in use in commerce at least as early as the filing date of the application"[for an application based on Section 1(a), Use in Commerce] OR "The substitute (or new, or originally submitted, if appropriate) specimen(s) was/were in use in commerce prior either to the filing of the Amendment to Allege Use or expiration of the filing deadline for filing a Statement of Use" [for an application based on Section 1(b) Intent-to-Use]. OR "The attached specimen is a true copy of the specimen that was originally submitted with the application, amendment to allege use, or statement of use" [for an illegible specimen].
Specimen File1


Webpage URL: None Provided
Webpage Date of Access: None Provided

The owner's/holder's current attorney information: Gaines P. Carter. Gaines P. Carter of KPPB LAW, is a member of the XX bar, admitted to the bar in XXXX, bar membership no. XXX, is located at

      SUITE 800
      990 HAMMOND DRIVE NE
      ATLANTA, Georgia 30328
      United States
The docket/reference number is tectonTM01.
      The phone number is 678-641-1654.
      The fax number is 678.443.2230.
      The email address is gcarter@kppblaw.com

The owner's/holder's proposed attorney information: Gaines P. Carter. Gaines P. Carter of KPPB LAW, is a member of the XX bar, admitted to the bar in XXXX, bar membership no. XXX, is located at

      SUITE 800
      990 HAMMOND DRIVE NE
      ATLANTA, Georgia 30328
      United States
The docket/reference number is tectonTM01.
      The phone number is 678-641-1654.
      The fax number is 678.443.2230.
      The email address is gcarter@kppblaw.com

Gaines P. Carter submitted the following statement: The attorney of record is an active member in good standing of the bar of the highest court of a U.S. state, the District of Columbia, or any U.S. Commonwealth or territory.Correspondence Information (current):
      GAINES P. CARTER
      PRIMARY EMAIL FOR CORRESPONDENCE: gcarter@kppblaw.com
      SECONDARY EMAIL ADDRESS(ES) (COURTESY COPIES): gaines.carter@gmail.com

The docket/reference number is tectonTM01.
Correspondence Information (proposed):
      Gaines P. Carter
      PRIMARY EMAIL FOR CORRESPONDENCE: gcarter@kppblaw.com
      SECONDARY EMAIL ADDRESS(ES) (COURTESY COPIES): gaines.carter@gmail.com

The docket/reference number is tectonTM01.

Requirement for Email and Electronic Filing: I understand that a valid email address must be maintained by the owner/holder and the owner's/holder's attorney, if appointed, and that all official trademark correspondence must be submitted via the Trademark Electronic Application System (TEAS).

SIGNATURE(S)
Declaration Signature

DECLARATION: The signatory being warned that willful false statements and the like are punishable by fine or imprisonment, or both, under 18 U.S.C. § 1001, and that such willful false statements and the like may jeopardize the validity of the application or submission or any registration resulting therefrom, declares that, if the applicant submitted the application or allegation of use (AOU) unsigned, all statements in the application or AOU and this submission based on the signatory's own knowledge are true, and all statements in the application or AOU and this submission made on information and belief are believed to be true.

STATEMENTS FOR UNSIGNED SECTION 1(a) APPLICATION/AOU: If the applicant filed an unsigned application under 15 U.S.C. §1051(a) or AOU under 15 U.S.C. §1051(c), the signatory additionally believes that: the applicant is the owner of the mark sought to be registered; the mark is in use in commerce and was in use in commerce as of the filing date of the application or AOU on or in connection with the goods/services/collective membership organization in the application or AOU; the original specimen(s), if applicable, shows the mark in use in commerce as of the filing date of the application or AOU on or in connection with the goods/services/collective membership organization in the application or AOU; for a collective trademark, collective service mark, collective membership mark application, or certification mark application, the applicant is exercising legitimate control over the use of the mark in commerce and was exercising legitimate control over the use of the mark in commerce as of the filing date of the application or AOU; for a certification mark application, the applicant is not engaged in the production or marketing of the goods/services to which the mark is applied, except to advertise or promote recognition of the certification program or of the goods/services that meet the certification standards of the applicant. To the best of the signatory's knowledge and belief, no other persons, except, if applicable, authorized users, members, and/or concurrent users, have the right to use the mark in commerce, either in the identical form or in such near resemblance as to be likely, when used on or in connection with the goods/services/collective membership organization of such other persons, to cause confusion or mistake, or to deceive.

STATEMENTS FOR UNSIGNED SECTION 1(b)/SECTION 44 APPLICATION AND FOR SECTION 66(a) COLLECTIVE/CERTIFICATION MARK APPLICATION: If the applicant filed an unsigned application under 15 U.S.C. §§ 1051(b), 1126(d), and/or 1126(e), or filed a collective/certification mark application under 15 U.S.C. §1141f(a), the signatory additionally believes that: for a trademark or service mark application, the applicant is entitled to use the mark in commerce on or in connection with the goods/services specified in the application; the applicant has a bona fide intention to use the mark in commerce and had a bona fide intention to use the mark in commerce as of the application filing date; for a collective trademark, collective service mark, collective membership mark, or certification mark application, the applicant has a bona fide intention, and is entitled, to exercise legitimate control over the use of the mark in commerce and had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce as of the application filing date; the signatory is properly authorized to execute the declaration on behalf of the applicant; for a certification mark application, the applicant will not engage in the production or marketing of the goods/services to which the mark is applied, except to advertise or promote recognition of the certification program or of the goods/services that meet the certification standards of the applicant. To the best of the signatory's knowledge and belief, no other persons, except, if applicable, authorized users, members, and/or concurrent users, have the right to use the mark in commerce, either in the identical form or in such near resemblance as to be likely, when used on or in connection with the goods/services/collective membership organization of such other persons, to cause confusion or mistake, or to deceive.

Signature: /Gaines P. Carter/      Date: 02/16/2022
Signatory's Name: Gaines P. Carter
Signatory's Position: attorney
Signatory's Phone Number: (678)641-1654

Signature method: Signed directly within the form

Response Signature
Signature: /Gaines P. Carter/     Date: 02/16/2022
Signatory's Name: Gaines P. Carter
Signatory's Position: attorney

Signatory's Phone Number: (678)641-1654 Signature method: Signed directly within the form

The signatory has confirmed that he/she is a U.S.-licensed attorney who is an active member in good standing of the bar of the highest court of a U.S. state (including the District of Columbia and any U.S. Commonwealth or territory); and he/she is currently the owner's/holder's attorney or an associate thereof; and to the best of his/her knowledge, if prior to his/her appointment another U.S.-licensed attorney not currently associated with his/her company/firm previously represented the owner/holder in this matter: the owner/holder has revoked their power of attorney by a signed revocation or substitute power of attorney with the USPTO; the USPTO has granted that attorney's withdrawal request; the owner/holder has filed a power of attorney appointing him/her in this matter; or the owner's/holder's appointed U.S.-licensed attorney has filed a power of attorney appointing him/her as an associate attorney in this matter.

Mailing Address:    GAINES P. CARTER
   KPPB LAW
   SUITE 800
   990 HAMMOND DRIVE NE
   ATLANTA, Georgia 30328
Mailing Address:    Gaines P. Carter
   KPPB LAW
   SUITE 800
   990 HAMMOND DRIVE NE
   ATLANTA, Georgia 30328
        
Serial Number: 90503385
Internet Transmission Date: Wed Feb 16 18:58:18 ET 2022
TEAS Stamp: USPTO/ROA-XX.XX.XXX.XXX-2022021618581832
1215-90503385-800c4da699429c81d487bac35f
c7a388264272689016885882b78fe7437d85d91-
N/A-N/A-20220216185242933886