from: quigley, linda sent: 11/14/2015 4:13:43 pm to: ttab...
TRANSCRIPT
From: Quigley, Linda
Sent: 11/14/2015 4:13:43 PM
To: TTAB EFiling
CC:
Subject: U.S. TRADEMARK APPLICATION NO. 85932189 - LIVE HAPPY - 138208-3006 - Request for Reconsideration Denied - Return to TTAB
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Attachment Information:
Count: 8
Files: subclaus-1.jpg, subclaus-2.jpg, live-1.jpg, live-2.jpg, live-3.jpg, happy-1.jpg, happy-2.jpg, 85932189.doc
UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO) OFFICE ACTION (OFFICIAL LETTER) ABOUT APPLICANT’S TRADEMARK APPLICATION
U.S. APPLICATION SERIAL NO. 85932189
MARK: LIVE HAPPY
*85932189*
CORRESPONDENT ADDRESS: ROBERT J WARD
GARDERE WYNNE SEWELL LLP
1601 ELM STREET SUITE 3000
DALLAS, TX 75201-4761
GENERAL TRADEMARK INFORMATION:
http://www.uspto.gov/trademarks/index.jsp
VIEW YOUR APPLICATION FILE
APPLICANT: LIVE HAPPY, LLC
CORRESPONDENT’S REFERENCE/DOCKET NO:
138208-3006
CORRESPONDENT E-MAIL ADDRESS:
REQUEST FOR RECONSIDERATION DENIED
ISSUE/MAILING DATE: 11/14/2015
The trademark examining attorney has carefully reviewed applicant’s request for reconsideration and is denying the request for the reasons stated below. See 37 C.F.R. §2.63(b)(3); TMEP §§715.03(a)(ii)(B), 715.04(a). The following refusal made final in the Office action dated May 5, 2015, is maintained and continues to be final: Section 2(d) Refusal for likelihood of confusion with registered marks. See TMEP §§715.03(a)(ii)(B), 715.04(a).
The applicant asserts that the trademark examining attorney is focusing exclusively on the shared wording in the marks, “LIVE HAPPY.” However, the examining attorney noted only that “LIVE HAPPY” is the dominant portion of all three marks. The initial words of marks are most likely to be recalled by consumers. “LIVE HAPPY” is the entirety of applicant’s mark, and it is the initial phrase in registrant’s marks. The American Heritage Dictionary defines “LIVE” as “to spend or pass one’s life” and “HAPPY” as “enjoying, showing, or marked by pleasure, satisfaction, or joy.” See attached definitions. The marks convey the same commercial impression to consumers that the products and services offered under the marks will contribute to living a happy life.
Moreover, the additional wording in registrant’s marks, “BY NATURAL LIFE,” is a subordinate clause modifying the dominant clause “LIVE HAPPY.” See attached definition of “subordinate clause.” In fact, in U.S. Registration No. 4489541, the subordinate clause is shown in smaller font at the bottom of the mark. The applicant asserted that the additional wording in registrant’s marks means that the applicant’s mark and the registrant’s marks have different commercial impressions. However, in the case applicant cited, In re Farm Fresh Catfish Co., the Board based its decision that the marks conveyed “significantly different commercial impressions on factors that are distinguishable from the instant case. In re Farm Fresh Catfish Co., 231 USPQ 495 (TTAB 1986). The shared wording in the marks in In re Farm Fresh Catfish was not the initial wording, and the word “BOBBERS” had clearly different meanings in context of the goods and services. Id. Here, “LIVE HAPPY” has the same dictionary definition in context of the goods in all three marks. Additionally, while the goods and services were arguably related, they were not identical in part and closely related, as in the present case. Where the goods and/or services of an applicant and registrant are “similar in kind and/or closely related,” the degree of similarity between the marks required to support a finding of likelihood of confusion is not as great as in the case of diverse goods and/or services. In re J.M. Originals Inc., 6 USPQ2d 1393, 1394 (TTAB 1987); see Shen Mfg. Co. v. Ritz Hotel Ltd., 393 F.3d 1238, 1242, 73 USPQ2d 1350, 1354 (Fed. Cir. 2004); TMEP §1207.01(b).
In viewing the marks as a whole, “LIVE HAPPY” dominates the overall commercial impression of the marks and has the same meaning in context of the goods identified in the application and the registrations. Moreover, the applicant’s goods and the registrant’s goods are identical in part and closely related.
In the present case, applicant’s request has not resolved all the outstanding issues, nor does it raise a new issue or provide any new or compelling evidence with regard to the outstanding issue in the final
Office action. In addition, applicant’s analysis and arguments are not persuasive nor do they shed new light on the issues. Accordingly, the request is denied.
If applicant has already filed a timely notice of appeal with the Trademark Trial and Appeal Board, the Board will be notified to resume the appeal. See TMEP §715.04(a).
If no appeal has been filed and time remains in the six-month response period to the final Office action, applicant has the remainder of the response period to (1) comply with and/or overcome any outstanding final requirement(s) and/or refusal(s), and/or (2) file a notice of appeal to the Board. TMEP §715.03(a)(ii)(B); see 37 C.F.R. §2.63(b)(1)-(3). The filing of a request for reconsideration does not stay or extend the time for filing an appeal. 37 C.F.R. §2.63(b)(3); see TMEP §§715.03, 715.03(a)(ii)(B), (c).
/Linda M. Quigley/
Trademark Examining Attorney
Law Office 114
(571) 272-7982
