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
`
`85886579
`
`LAW OFFICE
`ASSIGNED
`
`MARK SECTION
`
`LAW OFFICE 109
`
`MARK FILE NAME
`
`http://tmng-al.uspto.gov/resting2/api/img/85886579/large
`
`LITERAL ELEMENT
`
`INCA TEA ORIGINAL 100% ALL NATURAL INGREDIENTS
`
`STANDARD
`CHARACTERS
`
`USPTO-GENERATED
`IMAGE
`
`ARGUMENT(S)
`
`NO
`
`NO
`
`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 ORIGINAL 100% ALL
`NATURAL INGREDIENTS w/Design and INCA’S FOOD w/Design. (cid:160) Applicant respectfully requests
`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 A and include:(cid:160) INCA
`TEA CAFE · CLE w/Design, subject of Serial No. 86457242, for restaurant services.(cid:160) This mark looks
`very similar to the presently pending mark in that it contains concentric circles with the words INCA
`
`

`
`TEA at the top and the Peruvian Mountains in the background.(cid:160) This mark is very similar to Applicant’s
`pending mark in sound and appearance, 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 mark is 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 here act consistently with the INCA POP application
`and approve this INCA TEA ORIGINAL 100% ALL NATURAL INGREDIENTS w/Design 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 subject INCA TEA ORIGINAL 100% ALL NATURAL INGREDIENTS w/Design mark
`in that they can be consumed together, i.e., you can drink Applicant’s purple corn tea and with its meal
`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.
`
`The Goods Are Distinctly Different
`
`Applicant has amended its identification of goods to clarify that its teas and tea blends are comprised of
`purple corn.(cid:160) The cited registrant’s goods consist of teas, namely, linden and chamomile. (cid:160)
`
`Purple corn is quite unique as it grows only in Peru in the Peruvian Andes.(cid:160) Health benefits achieved
`from purple corn are tremendous.(cid:160) Purple corn itself has been dubbed a super food.(cid:160) Purple corn
`contains a variety of phytonutrients which include phenolics and anthocyanins.(cid:160) Anthocyanins provide
`anti-inflammatory effects and are said to promote connective tissue regeneration.(cid:160) They are also
`powerful antioxidants which help prevent disease, improve blood circulation and reduce cholesterol.(cid:160)
`Indeed, many studies have been done which promote the benefits of purple corn.(cid:160) See, for example, the
`attached articles about Purple Corn (Exhibit B).
`
`All of Applicant’s tea products contain purple corn as set forth in the statement of goods. (cid:160) Thus,
`Applicant’s teas are derived from the purple corn plant itself which, as said above, grows in Peru. (cid:160)
`
`The only items contained in the cited registration, which the Examining Attorney cited, consist of linden
`and chamomile teas.(cid:160) Both linden and chamomile teas derive from flowers—not purple corn. (cid:160) As noted
`in the attached article of Exhibit C:(cid:160) chamomile is an herb that comes from a flowering plant from the
`daisy family.(cid:160) Linden tea is likewise made from the flowers, namely, flowers of the linden tree.(cid:160) See the
`articles of Exhibit D.
`
`Neither linden nor chamomile, both of which are flowers, compare with purple corn, a vegetable.(cid:160) Thus,
`the products are entirely different.
`
`

`
`The Marks Have Different Connotations
`
`The cited mark is INCA’S FOOD and includes the stylized lettering for INCA’S FOOD, which is
`underlined, along with an image of an upper portion of a Tumi, which is a ceremonial knife of the pre-
`Incan cultures of Peru.(cid:160) Inca is defined as a ruler or member of the royal family in the Inca Empire.(cid:160)
`Thus, the mark INCA’S FOOD, coupled with the Tumi design, suggests that the food is fit for royalty. (cid:160)
`The linden and chamomile teas offered under the INCA’S FOOD mark are the same as would be
`imbibed upon by a ruler of the Incan people.(cid:160) The mark is possessive, thus, intimating that the food
`belongs to the royal Inca, i.e., INCA’S FOOD. (cid:160)
`
`As discussed above, Applicant’s goods are made from purple corn which grows in Peru. (cid:160) As a result,
`the mark itself suggests that the purple corn product is rich in the history of the Peruvian people and
`may have been enjoyed by members of dominant groups of South American Indian peoples who
`established an empire in Peru prior to the Spanish Conquest.(cid:160) Thus, the INCA portion of Applicant’s
`mark, when associated with purple corn tea, gives the impression that the tea itself may have been drunk
`by certain groups of(cid:160) people in history.
`
`Applicant’s mark contains distinctive details (mountains, concentric circles, a ribbon, the words
`“ORIGINAL 100% ALL NATURAL INGREDIENTS”). (cid:160) When respective marks are compared in
`their entireties, there is no likelihood of confusion—the only common word, INCA, is weak and not
`enough to cause confusion.
`
`INCA is a Weak Trademark Formative
`
`As previously pointed out, there are numerous INCA formative marks in the food and beverage
`category, which consist of goods and services closely related to tea.(cid:160) There are several INCA marks for
`teas that were in force in the past simultaneously with the INCA’S FOOD mark. (cid:160) The Examining
`Attorney attempted to distinguish the Class 5 third party marks by arguing that the cited registration is
`the only live registration for non-medicated teas.(cid:160) However, the cited registrant’s linden and chamomile
`teas likewise contain medical benefits.(cid:160) See Exhibits E and F for articles touting the medical benefits of
`chamomile and linden.(cid:160) Accordingly, the cited teas could have potentially been registered in either
`class—thus the existence of third party INCA formative marks for tea in Class 5 supports the weakness
`of the formative.(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)(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)(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)(cid:160)(cid:160)
`
`Moreover, as discussed above, Applicant owns other INCA formative marks which have been approved,
`including marks for popcorn, energy bars, and restaurant services, all bearing the INCA formative
`designation.(cid:160) The present application for INCA TEA ORIGINAL 100% ALL NATURAL
`INGREDIENTS w/Design should be treated in the same manner and approved for registration.(cid:160) People
`are accustomed to seeing INCA formatives in a wide variety of goods and services, including those of
`Applicant, and the marks INCA TEA ORIGINAL 100% ALL NATURAL INGREDIENTS w/Design
`and INCA’S FOOD w/Design are not confusingly similar. (cid:160) Also, the goods at issue (purple corn tea vs.
`linden and chamomile tea) are entirely different, offer different benefits, tastes, and origins.(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)(25 pages)
`
`evi_3867194146-20150727121230280554_._FLOR500004_ExhibitsA-F.pdf
`
`\\TICRS\EXPORT16\IMAGEOUT16\858\865\85886579\xml16\RFR0002.JPG
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`\\TICRS\EXPORT16\IMAGEOUT16\858\865\85886579\xml16\RFR0003.JPG
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`\\TICRS\EXPORT16\IMAGEOUT16\858\865\85886579\xml16\RFR0004.JPG
`
`\\TICRS\EXPORT16\IMAGEOUT16\858\865\85886579\xml16\RFR0005.JPG
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`\\TICRS\EXPORT16\IMAGEOUT16\858\865\85886579\xml16\RFR0006.JPG
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`\\TICRS\EXPORT16\IMAGEOUT16\858\865\85886579\xml16\RFR0007.JPG
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`\\TICRS\EXPORT16\IMAGEOUT16\858\865\85886579\xml16\RFR0008.JPG
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`\\TICRS\EXPORT16\IMAGEOUT16\858\865\85886579\xml16\RFR0009.JPG
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`\\TICRS\EXPORT16\IMAGEOUT16\858\865\85886579\xml16\RFR0010.JPG
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`\\TICRS\EXPORT16\IMAGEOUT16\858\865\85886579\xml16\RFR0011.JPG
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`\\TICRS\EXPORT16\IMAGEOUT16\858\865\85886579\xml16\RFR0012.JPG
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`\\TICRS\EXPORT16\IMAGEOUT16\858\865\85886579\xml16\RFR0013.JPG
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`\\TICRS\EXPORT16\IMAGEOUT16\858\865\85886579\xml16\RFR0014.JPG
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`\\TICRS\EXPORT16\IMAGEOUT16\858\865\85886579\xml16\RFR0015.JPG
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`\\TICRS\EXPORT16\IMAGEOUT16\858\865\85886579\xml16\RFR0016.JPG
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`\\TICRS\EXPORT16\IMAGEOUT16\858\865\85886579\xml16\RFR0017.JPG
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`\\TICRS\EXPORT16\IMAGEOUT16\858\865\85886579\xml16\RFR0018.JPG
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`\\TICRS\EXPORT16\IMAGEOUT16\858\865\85886579\xml16\RFR0019.JPG
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`\\TICRS\EXPORT16\IMAGEOUT16\858\865\85886579\xml16\RFR0026.JPG
`
`DESCRIPTION OF
`EVIDENCE FILE
`
`Exhibits A-F
`
`(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)
`(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)
`(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)
`(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)
`(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)
`(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)
`(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)
`(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)
`(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)
`(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)
`(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)
`(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)
`

`
`GOODS AND/OR SERVICES SECTION (current)
`
`INTERNATIONAL
`CLASS
`
`DESCRIPTION
`
`030
`
`Teas; teas comprised of purple corn; tea blends comprised of purple corn
`
`FILING BASIS
`
`Section 1(b)
`
`GOODS AND/OR SERVICES SECTION (proposed)
`
`INTERNATIONAL
`CLASS
`
`030
`
`TRACKED TEXT DESCRIPTION
`
`Teas; Teas comprised of purple corn; tea blends comprised of purple corn
`
`FINAL(cid:160)DESCRIPTION
`
`Teas comprised of purple corn; tea blends comprised of purple corn
`
`FILING BASIS
`
`Section 1(b)
`
`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 12:20:18 EDT 2015
`
`TEAS STAMP
`
`USPTO/RFR-38.67.194.146-2
`0150727122018725640-85886
`579-540edca9a5f76fff671df
`a51e26b8d794ff072a562e485
`e19516d2b615c8bd5540-N/A-
`N/A-20150727121230280554
`
`

`
`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. 85886579(cid:160)INCA TEA ORIGINAL 100% ALL NATURAL INGREDIENTS
`(Stylized and/or with Design, see http://tmng-al.uspto.gov/resting2/api/img/85886579/large) has been
`amended as follows:
`
`ARGUMENT(S)
`In response to the substantive refusal(s), please note the following:
`
`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 ORIGINAL 100% ALL
`NATURAL INGREDIENTS w/Design and INCA’S FOOD w/Design. (cid:160) Applicant respectfully requests
`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 A and include:(cid:160) INCA TEA CAFE ·
`CLE w/Design, subject of Serial No. 86457242, for restaurant services.(cid:160) This mark looks very similar to
`the presently pending mark in that it contains concentric circles with the words INCA TEA at the top and
`the Peruvian Mountains in the background.(cid:160) This mark is very similar to Applicant’s pending mark in
`sound and appearance, 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 mark is 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 here act consistently with the INCA POP application and approve
`this INCA TEA ORIGINAL 100% ALL NATURAL INGREDIENTS w/Design 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 subject INCA TEA ORIGINAL 100% ALL NATURAL INGREDIENTS w/Design mark in that
`they can be consumed together, i.e., you can drink Applicant’s purple corn tea and with its meal 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.
`
`The Goods Are Distinctly Different
`
`Applicant has amended its identification of goods to clarify that its teas and tea blends are comprised of
`purple corn.(cid:160) The cited registrant’s goods consist of teas, namely, linden and chamomile. (cid:160)
`
`Purple corn is quite unique as it grows only in Peru in the Peruvian Andes.(cid:160) Health benefits achieved from
`purple corn are tremendous.(cid:160) Purple corn itself has been dubbed a super food.(cid:160) Purple corn contains a
`variety of phytonutrients which include phenolics and anthocyanins.(cid:160) Anthocyanins provide anti-
`inflammatory effects and are said to promote connective tissue regeneration.(cid:160) They are also powerful
`antioxidants which help prevent disease, improve blood circulation and reduce cholesterol.(cid:160) Indeed, many
`studies have been done which promote the benefits of purple corn.(cid:160) See, for example, the attached articles
`about Purple Corn (Exhibit B).
`
`All of Applicant’s tea products contain purple corn as set forth in the statement of goods. (cid:160) Thus,
`Applicant’s teas are derived from the purple corn plant itself which, as said above, grows in Peru. (cid:160)
`
`The only items contained in the cited registration, which the Examining Attorney cited, consist of linden
`and chamomile teas.(cid:160) Both linden and chamomile teas derive from flowers—not purple corn. (cid:160) As noted in
`the attached article of Exhibit C:(cid:160) chamomile is an herb that comes from a flowering plant from the daisy
`family.(cid:160) Linden tea is likewise made from the flowers, namely, flowers of the linden tree.(cid:160) See the articles
`of Exhibit D.
`
`Neither linden nor chamomile, both of which are flowers, compare with purple corn, a vegetable.(cid:160) Thus,
`the products are entirely different.
`
`The Marks Have Different Connotations
`
`The cited mark is INCA’S FOOD and includes the stylized lettering for INCA’S FOOD, which is
`underlined, along with an image of an upper portion of a Tumi, which is a ceremonial knife of the pre-
`Incan cultures of Peru.(cid:160) Inca is defined as a ruler or member of the royal family in the Inca Empire.(cid:160) Thus,
`the mark INCA’S FOOD, coupled with the Tumi design, suggests that the food is fit for royalty. (cid:160) The
`linden and chamomile teas offered under the INCA’S FOOD mark are the same as would be imbibed
`upon by a ruler of the Incan people.(cid:160) The mark is possessive, thus, intimating that the food belongs to the
`royal Inca, i.e., INCA’S FOOD. (cid:160)
`
`As discussed above, Applicant’s goods are made from purple corn which grows in Peru. (cid:160) As a result, the
`
`

`
`mark itself suggests that the purple corn product is rich in the history of the Peruvian people and may have
`been enjoyed by members of dominant groups of South American Indian peoples who established an
`empire in Peru prior to the Spanish Conquest.(cid:160) Thus, the INCA portion of Applicant’s mark, when
`associated with purple corn tea, gives the impression that the tea itself may have been drunk by certain
`groups of(cid:160) people in history.
`
`Applicant’s mark contains distinctive details (mountains, concentric circles, a ribbon, the words
`“ORIGINAL 100% ALL NATURAL INGREDIENTS”). (cid:160) When respective marks are compared in their
`entireties, there is no likelihood of confusion—the only common word, INCA, is weak and not enough to
`cause confusion.
`
`INCA is a Weak Trademark Formative
`
`As previously pointed out, there are numerous INCA formative marks in the food and beverage category,
`which consist of goods and services closely related to tea.(cid:160) There are several INCA marks for teas that
`were in force in the past simultaneously with the INCA’S FOOD mark. (cid:160) The Examining Attorney
`attempted to distinguish the Class 5 third party marks by arguing that the cited registration is the only live
`registration for non-medicated teas.(cid:160) However, the cited registrant’s linden and chamomile teas likewise
`contain medical benefits.(cid:160) See Exhibits E and F for articles touting the medical benefits of chamomile and
`linden.(cid:160) Accordingly, the cited teas could have potentially been registered in either class—thus the
`existence of third party INCA formative marks for tea in Class 5 supports the weakness of the
`formative.(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)(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)(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)(cid:160)(cid:160)
`
`Moreover, as discussed above, Applicant owns other INCA formative marks which have been approved,
`including marks for popcorn, energy bars, and restaurant services, all bearing the INCA formative
`designation.(cid:160) The present application for INCA TEA ORIGINAL 100% ALL NATURAL
`INGREDIENTS w/Design should be treated in the same manner and approved for registration.(cid:160) People are
`accustomed to seeing INCA formatives in a wide variety of goods and services, including those of
`Applicant, and the marks INCA TEA ORIGINAL 100% ALL NATURAL INGREDIENTS w/Design and
`INCA’S FOOD w/Design are not confusingly similar. (cid:160) Also, the goods at issue (purple corn tea vs. linden
`and chamomile tea) are entirely different, offer different benefits, tastes, and origins.(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 Exhibits A-F has been attached.
`Original PDF file:
`evi_3867194146-20150727121230280554_._FLOR500004_ExhibitsA-F.pdf
`Converted PDF file(s) ( 25 pages)
`Evidence-1
`Evidence-2
`Evidence-3
`Evidence-4
`Evidence-5
`Evidence-6
`
`

`
`Evidence-7
`Evidence-8
`Evidence-9
`Evidence-10
`Evidence-11
`Evidence-12
`Evidence-13
`Evidence-14
`Evidence-15
`Evidence-16
`Evidence-17
`Evidence-18
`Evidence-19
`Evidence-20
`Evidence-21
`Evidence-22
`Evidence-23
`Evidence-24
`Evidence-25
`
`CLASSIFICATION AND LISTING OF GOODS/SERVICES
`Applicant proposes to amend the following class of goods/services in the application:
`Current: Class 030 for Teas; teas comprised of purple corn; tea blends comprised of purple corn
`Original Filing Basis:
`Filing Basis: Section 1(b), Intent to Use: For a trademark or service mark application: As of the
`application filing date, the applicant had a bona fide intention, and was entitled, to use the mark in
`commerce on or in connection with the identified goods/services in the application. For a collective
`trademark, collective service mark, or collective membership mark application: As of the application
`filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the
`use of the mark in commerce by members on or in connection with the identified goods/services/collective
`membership organization. For a certification mark application: As of the application filing date, the
`applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the
`mark in commerce by authorized users in connection with the identified goods/services, and 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.
`
`Proposed:
`Tracked Text Description: Teas; Teas comprised of purple corn; tea blends comprised of purple corn
`
`Class 030 for Teas comprised of purple corn; tea blends comprised of purple corn
`Filing Basis: Section 1(b), Intent to Use: For a trademark or service mark application: As of the
`application filing date, the applicant had a bona fide intention, and was entitled, to use the mark in
`commerce on or in connection with the identified goods/services in the application. For a collective
`trademark, collective service mark, or collective membership mark application: As of the application
`filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the
`use of the mark in commerce by members on or in connection with the identified goods/services/collective
`membership organization. For a certification mark application: As of the application filing date, the
`
`

`
`applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the
`mark in commerce by authorized users in connection with the identified goods/services, and 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.
`
`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: 85886579
`Internet Transmission Date: Mon Jul 27 12:20:18 EDT 2015
`TEAS Stamp: USPTO/RFR-38.67.194.146-2015072712201872
`5640-85886579-540edca9a5f76fff671dfa51e2
`6b8d794ff072a562e485e19516d2b615c8bd5540
`-N/A-N/A-20150727121230280554
`
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
`

`
`
`
` EXHIBIT A EXHIBIT A
`
`

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`Goods and
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`Design Search
`Code
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`Filing Data
`current Basis
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`Original Flllng
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`Published for
`Opposition
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`Record
`Disclaimer
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`Description of
`Mark
`
`Type of Mark
`Register
`LiveIDead
`Indicator
`
`INCA TEA CAFE - CLE
`
`IC 043. US 100 101. G & S: 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
`36457242
`November 18, 2014
`1B
`
`1B
`
`May 19, 2015
`
`(APPLICANT) Inca Tea, LLC LIMITED LIABILITY COMPANY OHIO 6462 State Road, Suite 0-19 Parma OHIO 44134
`
`Sandra M. Koenig
`
`NO CLAIM IS IIMDE 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 forward facing
`airplane with the wings expanding horizontally beyond the arcs.
`SERVICE MARK
`PRINCIPAL
`
`LIVE
`
`I-i USE H‘
`
`.'T'iJFtE[3 I1Fggafi F.mgM HM,-a\‘_-.I' LIIEIJ
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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
`
`Filing Date
`Current Basis
`
`November 18, 2014
`1B
`
`Original Filing Basis
`P bl’ h df
`ogpgitfon°'
`Owner
`
`Attorney of Record
`Type of Mark
`Register
`LiveIDead Indicator
`
`1B
`
`January 20, 2015
`(APPLICANT) Inca Tea, LLC LIMITED LIABILITY COMPANY OHIO 6462 State Road.
`Suite O-19 Parma OHIO 44134
`
`Sandra M. Koenig
`TRADEMARK
`PRINCIPAL
`
`TESS l-[I::aaar:'.
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