PTO Form 1960 (Rev 9/2007)
`
`OMB No. 0651-0050 (Exp. 07/31/2017)
`
`Request for Reconsideration after Final Action
`
`The table below presents the data as entered.
`
`Input Field
`
`Entered
`
`SERIAL NUMBER
`
`85886550
`
`LAW OFFICE
`ASSIGNED
`
`MARK SECTION
`
`LAW OFFICE 109
`
`MARK
`
`http://tmng-al.uspto.gov/resting2/api/img/85886550/large
`
`LITERAL ELEMENT
`
`INCA TEA
`
`STANDARD
`CHARACTERS
`
`USPTO-GENERATED
`IMAGE
`
`YES
`
`YES
`
`MARK STATEMENT
`
`ARGUMENT(S)
`
`The mark consists of standard characters, without claim to any particular font
`style, size or color.
`
`In the Office Action dated January 27, 2015, the Examining Attorney made final the Section 2(d) refusal
`alleging a likelihood of confusion between Applicant’s mark INCA TEA and INCA’S FOOD
`w/Design.(cid:160) Applicant filed an amendment to the statement of goods along with a request for
`reconsideration.(cid:160) The Examining Attorney denied the request for reconsideration, but the amendment
`was entered.(cid:160) Applicant respectfully requests that the Examining Attorney reconsider reconsideration
`and withdrawal of the Section 2(d) refusal.
`
`No Actual Confusion
`
`Although a Statement of Use has not yet been filed, Applicant has been actively marketing and selling
`its purple corn tea product under the presently pending design trademark application for over a year and
`a half.(cid:160) In that time, not a single instance of confusion has arisen based on Applicant’s mark and the
`cited registrant’s mark.(cid:160)(cid:160)
`
`Furthermore, Applicant has expanded its business and sells its purple corn tea in grocery stores, through
`its website, and at international airports.(cid:160) Thus, the mark is exposed to a significant number of people,
`and not a single instance of confusion has arisen as stated above.(cid:160)(cid:160)
`
`Applicant’s Family of Marks—Consistent Examination is Essential
`
`In addition to the subject mark, Applicant owns several other INCA formative marks which have
`
`

`
`already been approved and published, but remain pending in the U.S. Patent and Trademark Office.(cid:160)
`TESS copies of the previously published applications are attached under Exhibit G and include:(cid:160) INCA
`TEA CAFE · CLE w/Design, subject of Serial No. 86457242, for restaurant services.(cid:160) This mark
`prominently bears the words INCA TEA along the top. (cid:160)This mark is very similar to Applicant’s
`pending mark, and has already been allowed.(cid:160) It is respectfully submitted that the Examining Attorney
`should act consistently with the INCA TEA CAFE · CLE w/Design mark and approve the presently
`pending mark for publication.(cid:160)
`
`Applicant also owns Application No. 86457184 for the mark INCA POP for popcorn, which published
`on January 20, 2015.(cid:160) Here, again, Applicant’s presently pending teas are comprised of purple corn, and
`INCA POP consists of popcorn—both highly related in that they contain corn as a featured ingredient.(cid:160)
`It is respectfully requested that the Examining Attorney handling the subject application act consistently
`with the INCA POP application and approve this INCA TEA mark for publication.(cid:160)
`
`Applicant also owns Serial No. 86457218 for the mark INCAN MEAL covering grain-based natural
`meal replacement bars.(cid:160) This mark published for opposition on April 7, 2015, and the goods are closely
`related to the goods in the subject INCA TEA mark in that they can be consumed together, i.e., you can
`drink Applicant’s INCA TEA brand purple corn tea and with its INCAN MEAL meal replacement bars.
`
`Since Applicant’s other three marks listed above can be approved in light of INCA’S FOOD, then
`certainly the pending mark here should likewise be approved.(cid:160) The only similarities between the present
`mark and the cited mark is the word “INCA” which, as previously argued, is a commonly used term
`and suggestive of the origin of Applicant’s purple corn tea.(cid:160)
`
`Again, Applicant submits that the subject application should be treated consistently with the other
`pending application, which were approved for publication, published, and no oppositions were raised.
`
`INCA is a Weak Trademark Formative
`
`The only commonality between Applicant’s mark and the cited mark is the word INCA. The relative
`strength of INCA as a trademark component is an important factor in determining whether there is a
`likelihood of confusion—which there is not.(cid:160) Since there are numerous INCA formative marks in the
`food and beverage category, which consist of goods and services closely related to tea, it is submitted
`that the INCA term is weak and consumers are well accustomed to seeing other INCA marks in
`association with foods/beverages and related goods and services.(cid:160)
`
`For these reasons, it is respectfully requested that the Examining Attorney reconsider and withdraw the
`Section 2(d) likelihood of confusion refusal and approve the mark for publication.(cid:160) Early notice to that
`effect is solicited.
`
`EVIDENCE SECTION
`
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)EVIDENCE FILE NAME(S)
`
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)ORIGINAL PDF
`FILE
`
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)CONVERTED PDF
`FILE(S)
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(4 pages)
`
`evi_3867194146-20150727135413010760_._FLOR500003_ExhibitG.pdf
`
`\\TICRS\EXPORT16\IMAGEOUT16\858\865\85886550\xml23\RFR0002.JPG
`
`\\TICRS\EXPORT16\IMAGEOUT16\858\865\85886550\xml23\RFR0003.JPG
`
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
`

`
`\\TICRS\EXPORT16\IMAGEOUT16\858\865\85886550\xml23\RFR0004.JPG
`
`\\TICRS\EXPORT16\IMAGEOUT16\858\865\85886550\xml23\RFR0005.JPG
`
`DESCRIPTION OF
`EVIDENCE FILE
`
`Exhibit G
`
`SIGNATURE SECTION
`
`RESPONSE
`SIGNATURE
`
`/sandramkoenig/
`
`SIGNATORY'S NAME
`
`Sandra M. Koenig
`
`SIGNATORY'S
`POSITION
`
`Attorney of record, Ohio bar member
`
`SIGNATORY'S PHONE
`NUMBER
`
`216-363-9000
`
`DATE SIGNED
`
`AUTHORIZED
`SIGNATORY
`
`CONCURRENT
`APPEAL NOTICE
`FILED
`
`07/27/2015
`
`YES
`
`YES
`
`FILING INFORMATION SECTION
`
`SUBMIT DATE
`
`Mon Jul 27 13:58:37 EDT 2015
`
`TEAS STAMP
`
`USPTO/RFR-38.67.194.146-2
`0150727135837549579-85886
`550-5405797fabfd44812d9be
`a339a151cef06e882530ee78a
`f50a4104d74ec972bd-N/A-N/
`A-20150727135413010760
`
`PTO Form 1960 (Rev 9/2007)
`
`OMB No. 0651-0050 (Exp. 07/31/2017)
`
`Request for Reconsideration after Final Action
`To the Commissioner for Trademarks:
`
`Application serial no. 85886550(cid:160)INCA TEA(Standard Characters, see http://tmng-
`al.uspto.gov/resting2/api/img/85886550/large) has been amended as follows:
`
`ARGUMENT(S)
`In response to the substantive refusal(s), please note the following:
`
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
`

`
`In the Office Action dated January 27, 2015, the Examining Attorney made final the Section 2(d) refusal
`alleging a likelihood of confusion between Applicant’s mark INCA TEA and INCA’S FOOD w/Design.(cid:160)
`Applicant filed an amendment to the statement of goods along with a request for reconsideration.(cid:160) The
`Examining Attorney denied the request for reconsideration, but the amendment was entered.(cid:160) Applicant
`respectfully requests that the Examining Attorney reconsider reconsideration and withdrawal of the
`Section 2(d) refusal.
`
`No Actual Confusion
`
`Although a Statement of Use has not yet been filed, Applicant has been actively marketing and selling its
`purple corn tea product under the presently pending design trademark application for over a year and a
`half.(cid:160) In that time, not a single instance of confusion has arisen based on Applicant’s mark and the cited
`registrant’s mark.(cid:160)(cid:160)
`
`Furthermore, Applicant has expanded its business and sells its purple corn tea in grocery stores, through
`its website, and at international airports.(cid:160) Thus, the mark is exposed to a significant number of people, and
`not a single instance of confusion has arisen as stated above.(cid:160)(cid:160)
`
`Applicant’s Family of Marks—Consistent Examination is Essential
`
`In addition to the subject mark, Applicant owns several other INCA formative marks which have already
`been approved and published, but remain pending in the U.S. Patent and Trademark Office.(cid:160) TESS copies
`of the previously published applications are attached under Exhibit G and include:(cid:160) INCA TEA CAFE ·
`CLE w/Design, subject of Serial No. 86457242, for restaurant services.(cid:160) This mark prominently bears the
`words INCA TEA along the top. (cid:160)This mark is very similar to Applicant’s pending mark, and has already
`been allowed.(cid:160) It is respectfully submitted that the Examining Attorney should act consistently with the
`INCA TEA CAFE · CLE w/Design mark and approve the presently pending mark for publication.(cid:160)
`
`Applicant also owns Application No. 86457184 for the mark INCA POP for popcorn, which published on
`January 20, 2015.(cid:160) Here, again, Applicant’s presently pending teas are comprised of purple corn, and
`INCA POP consists of popcorn—both highly related in that they contain corn as a featured ingredient.(cid:160) It
`is respectfully requested that the Examining Attorney handling the subject application act consistently
`with the INCA POP application and approve this INCA TEA mark for publication.(cid:160)
`
`Applicant also owns Serial No. 86457218 for the mark INCAN MEAL covering grain-based natural meal
`replacement bars.(cid:160) This mark published for opposition on April 7, 2015, and the goods are closely related
`to the goods in the subject INCA TEA mark in that they can be consumed together, i.e., you can drink
`Applicant’s INCA TEA brand purple corn tea and with its INCAN MEAL meal replacement bars.
`
`Since Applicant’s other three marks listed above can be approved in light of INCA’S FOOD, then
`certainly the pending mark here should likewise be approved.(cid:160) The only similarities between the present
`mark and the cited mark is the word “INCA” which, as previously argued, is a commonly used term and
`suggestive of the origin of Applicant’s purple corn tea.(cid:160)
`
`Again, Applicant submits that the subject application should be treated consistently with the other pending
`application, which were approved for publication, published, and no oppositions were raised.
`
`INCA is a Weak Trademark Formative
`
`

`
`The only commonality between Applicant’s mark and the cited mark is the word INCA. The relative
`strength of INCA as a trademark component is an important factor in determining whether there is a
`likelihood of confusion—which there is not.(cid:160) Since there are numerous INCA formative marks in the food
`and beverage category, which consist of goods and services closely related to tea, it is submitted that the
`INCA term is weak and consumers are well accustomed to seeing other INCA marks in association with
`foods/beverages and related goods and services.(cid:160)
`
`For these reasons, it is respectfully requested that the Examining Attorney reconsider and withdraw the
`Section 2(d) likelihood of confusion refusal and approve the mark for publication.(cid:160) Early notice to that
`effect is solicited.
`
`EVIDENCE
`Evidence in the nature of Exhibit G has been attached.
`Original PDF file:
`evi_3867194146-20150727135413010760_._FLOR500003_ExhibitG.pdf
`Converted PDF file(s) ( 4 pages)
`Evidence-1
`Evidence-2
`Evidence-3
`Evidence-4
`
`SIGNATURE(S)
`Request for Reconsideration Signature
`Signature: /sandramkoenig/(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)Date: 07/27/2015
`Signatory's Name: Sandra M. Koenig
`Signatory's Position: Attorney of record, Ohio bar member
`
`Signatory's Phone Number: 216-363-9000
`
`The signatory has confirmed that he/she is an attorney who is a member in good standing of the bar of the
`highest court of a U.S. state, which includes the District of Columbia, Puerto Rico, and other federal
`territories and possessions; 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. attorney or a Canadian
`attorney/agent not currently associated with his/her company/firm previously represented the owner/holder
`in this matter: (1) the owner/holder has filed or is concurrently filing a signed revocation of or substitute
`power of attorney with the USPTO; (2) the USPTO has granted the request of the prior representative to
`withdraw; (3) the owner/holder has filed a power of attorney appointing him/her in this matter; or (4) the
`owner's/holder's appointed U.S. attorney or Canadian attorney/agent has filed a power of attorney
`appointing him/her as an associate attorney in this matter.
`
`The applicant is filing a Notice of Appeal in conjunction with this Request for Reconsideration.
`
`Serial Number: 85886550
`Internet Transmission Date: Mon Jul 27 13:58:37 EDT 2015
`TEAS Stamp: USPTO/RFR-38.67.194.146-2015072713583754
`9579-85886550-5405797fabfd44812d9bea339a
`151cef06e882530ee78af50a4104d74ec972bd-N
`/A-N/A-20150727135413010760
`
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
`

`
`

`
`
`
`EXHIBIT GEXHIBIT G
`
`

`
`Trademark Electronic Search System (TESS)
`
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`
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`
`TEES I'*IC=M’r'.
`
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`
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`
`“A3 5‘'‘’‘i“5
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`
`INCA TEA CAFE - CLE
`
`IC 043. US 100 101. G & 5: Restaurant services
`
`(3) DESIGN PLUS WORDS, LETTERS, ANDIOR NUMBERS
`
`06.01.04 - Mountains (landscapes); Scenery with mountains
`18.09.01 -Airplanes; Gliders, airplane
`26.01.03 - Circles, incomplete (more than semi-circles); Incomplete circles (more than semi-circles)
`26.01.17 — Circles, two concentric; Concentric circles, two; Two concentric circles
`26.01.20 - Circles within a circle
`86457242
`November 18, 2014
`1 B
`
`1B
`
`May 19, 2015
`
`(APPLICANT) Inca Tea, LLC LIMITED LIABILITY COMPANY OHIO 6462 State Road. Suite O-19 Parma OHIO 44134
`
`Sandra M. Koenig
`
`NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE "TEA", "CAFE“ AND "CLE" APART FROM THE MARK AS
`SHOWN
`Color is not claimed as a feature of the mark. The mark consists of three concentric arcs with the words "INCA TEA"
`between two of the arcs along with 7 dots on each side of the words; the words "CAFE" and "CLE" in script letters
`appear blow the arc with a dot in between, and in the center of the arcs is an image of a mountain and a fonrvard facing
`airplane with the wings expanding horizontally beyond the arcs.
`SERVICE MARK
`PRINCIPAL
`
`Goods and
`Services
`
`Mark Drawing
`Code
`
`Design Search
`Code
`
`Serial Number
`Filing Date
`Current Basis
`Original Filing
`Basis
`Published for
`Opposition
`Owner
`
`Attorney of
`Record .
`Disclaimer
`
`Description of
`Mark
`
`Type of Mark
`Register
`LivelDead
`Indicator
`
`http ://tmsca1'ch.uspto .gov/bin/gate.exe?%doc&state=4805 :pc1ein.2. 1
`
`7/27/2015
`
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`
`INCA POP
`
`Word Mark
`
`INCA POP
`
`Goods and Services
`Standard Characters
`Claimed
`
`IC 030. US 046. G & S: Popcorn
`
`Mark Drawing Code
`Serial Number
`
`(4) STANDARD CHARACTER MARK
`86457184
`
`Filin Date
`Current Basis
`
`November 18. 2014
`1B
`
`Original Filing Basis
`P bl‘ h df
`O‘r’)p"J";it‘§on °'
`Owner
`
`1B
`
`January 20, 2015
`(APPLICANT) Inca Tea, LLC LIMITED LIABILITY COMPANY OHIO 6462 State Road,
`Suite O-19 Parrna OHIO 44‘! 34
`
`Attorney of Record
`Type of Mark
`Register
`LiveIDead Indicator
`
`Sandra M. Koenig
`TRADEMARK
`PRINCIPAL
`LIVE
`
`3 mar rrrr=v£=oc
`
`sumcnoc;
`
`|.HOME I SETE INUEXI SEARCH I eBUS|NESS I HELP | PRIVACY POLICY
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`
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`
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`1
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`
`INCAN MEAL
`
`Word Mark
`
`INCAN MEAL
`
`Goods and Services
`Standard Characters
`Claimed
`
`IC 030. US 046. G & S: Grain-based natural meal replacement bars
`
`Mark Drawing Code
`Serial Number
`
`(4) STANDARD CHARACTER MARK
`86457218
`
`Filing Date
`Current Basis
`
`November 18, 2014
`‘I B
`
`Original Filing Basis
`(';::';:'i‘§gnf°'
`Owner
`
`Attorney of Record
`Disclaimer
`
`‘IB
`April 7, 2015
`(APPLICANT) Inca Tea, LLC LIMITED LIABILITY COMPANY OHIO 6462 State Road,
`Suite O-19 Panna OHIO 44134
`
`Sandra M. Koenig
`NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE "MEAL" APART FROM THE
`MARK AS SHOWN
`
`Type of Mark
`Register
`LiveIDead Indicator
`
`TRADEMARK
`PRINCIPAL
`LIVE
`
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`7/27/20 1 5