From: Jagannathan, Siddharth
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`Sent: 7/17/2017 6:32:52 PM
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`To: TTAB EFiling
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`CC:
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`Subject: U.S. TRADEMARK APPLICATION NO. 86806911 - ER SHOT THERAPY - N/A - EXAMINER BRIEF
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`*************************************************
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`Attachment Information:
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`Count: 1
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`Files: 86806911.doc
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`UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)
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`U.S. APPLICATION SERIAL NO. 86806911
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`MARK: ER SHOT THERAPY
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`CORRESPONDENT ADDRESS:
` FRANCIS JOHN CIARAMELLA
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` ICK RUZ PLLC
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`*86806911*
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`GENERAL TRADEMARK INFORMATION:
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`http://www.uspto.gov/trademarks/index.jsp
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` 300 SEVILLA AVENUE SUITE 301
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`TTAB INFORMATION:
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`http://www.uspto.gov/trademarks/process/appeal/index.js
`p
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` CORAL GABLES, FL 33134
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`APPLICANT: RSRK Incorporated
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`CORRESPONDENT’S REFERENCE/DOCKET NO:
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` N/A
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`CORRESPONDENT E-MAIL ADDRESS:
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` francis@ruzlaw.com
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`EXAMINING ATTORNEY’S APPEAL BRIEF
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`QUESTIONS PRESENTED
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`I. Whether the Examining Attorney properly refused registration under Section 2(d) of the
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`Trademark Act of Applicant’s mark “ER SHOT THERAPY” for use in relation to “analgesics” due to
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`a likelihood of confusion with U.S. Registration No. 4710506, “FIRST AID SHOT THERAPY” (also in
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`standard characters) for (undisputedly) overlapping and related goods?
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`II. Whether the Examining Attorney properly required Applicant to disclaim “ER SHOT” when
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`Applicant admits that the goods will be delivered as “SHOTS” i.e. a small drink1 and also admits
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`that the goods are to be used for “medical emergencies”?
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`PROSECUTION HISTORY
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`1. On November 2, 2015, Applicant filed this Intent to Use Application and sought to register the
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`mark “ER SHOT THERAPY” in standard characters in relation to “analgesics” in International Class
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`5.
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`2.
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`In an Initial Office Action dated February 24, 2016, the undersigned Examining Attorney refused
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`registration pursuant to Section 2(d) of the Trademark Act due to a Likelihood of Confusion with
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`U.S. Registration No. 4710506 (“FIRST AID SHOT THERAPY” in standard characters) and also
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`required Applicant to disclaim the wording “ER SHOT.”
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`3. Applicant responded on August 24, 2016 and argued against the Section 2(d) Refusal as well as
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`the requirement to disclaim “ER” (Applicant supplied a disclaimer of “SHOT”).
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`4. On September 14, 2016, the Examining Attorney made both the Section 2(d) Refusal and
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`Disclaimer Requirement FINAL.
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`5. On March 14, 2017, Applicant noted an appeal to the Trademark Trial and Appeal Board (“Board”)
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`and also filed a Request for Reconsideration. On that same day, the Board remanded the case
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`back to the Examining Attorney to consider Applicant’s Request for Reconsideration. 2
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`6. The Examining Attorney denied Applicant’s Request for Reconsideration on March 29, 2017. On
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`April 3, 2017, the appeal resumed.
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`1 August 24, 2016 Response to Office Action, TSDR p. 4.
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` 2
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` TBMP §1204.
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`7. Applicant filed its brief (“Applicant’s Brief”) on May 25, 2017. On May 31, 2017 jurisdiction was
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`restored to the Examining Attorney for submission of the Office’s Brief.
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`SUMMARY OF ARGUMENT
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`The Examining Attorney properly refused registration pursuant to Section 2(d) of the Trademark
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`Act. Applicant’s mark “ER SHOT THERAPY” is confusingly similar to the registered mark “FIRST AID SHOT
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`THERAPY” because both marks, when compared in their entireties, readily impart to a consumer that
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`the goods offered will be therapeutic agents administered as “SHOTS” during emergency or serious
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`medical situations. Applicant concedes that its’ “analgesics” (defined as substances that alleviate pain
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`and will be administered as “SHOTS” i.e. small drinks) are related to the various medical and clinical
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`beverages that relieve pain in the cited registration. The goods travel in the same channels of trade and
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`are available to all classes of purchasers further enhancing a likelihood of confusion. Lastly, the common
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`element in both marks “SHOT THERAPY” is not weak or diluted and the absence of actual confusion does
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`not prevent a finding of a likelihood of confusion. Therefore, the Examining Attorney properly refused
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`registration pursuant to Section 2(d) of the Trademark Act.
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`The Examining Attorney also correctly required Applicant to disclaim “ER SHOT” apart from the
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`mark as shown. Applicant admits that its’ goods will be delivered as “SHOTS.” The application contains
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`no restrictions as to channels of trade. Therefore, it must be presumed that the goods travel in (and can
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`be used) in all trade channels including the “ER” or “EMERGENCY ROOM” to (in Applicant’s words)
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`“relieve the consumer’s intense pain.” See Applicant’s Brief at 5.
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`ARGUMENT
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`A. The Examining Attorney Properly Refused Registration Pursuant to Section 2(d) of the
`Trademark Act
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`Standard of Review
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`Trademark Act Section 2(d) bars registration of an applied-for mark that so resembles a
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`registered mark that it is likely a potential consumer would be confused, mistaken, or deceived as to the
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`source of the goods of the applicant and registrant. See 15 U.S.C. §1052(d). A determination of
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`likelihood of confusion under Section 2(d) is made on a case-by-case basis and the factors set forth in In
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`re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 1361, 177 USPQ 563, 567 (C.C.P.A. 1973) aid in this
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`determination. Not all the du Pont factors, however, are necessarily relevant or of equal weight, and any
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`one of the factors may control in a given case, depending upon the evidence of record. In re Majestic
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`Distilling Co., 315 F.3d 1311, 1315, 65 USPQ2d 1201, 1204 (Fed. Cir. 2003).
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`In this case, the following factors are the most relevant: similarity of the marks, relatedness of
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`the goods, and similarity in trade channels of the goods. See In re Viterra Inc., 671 F.3d 1358, 1361-62,
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`101 USPQ2d 1905, 1908 (Fed. Cir. 2012); In re Dakin’s Miniatures Inc., 59 USPQ2d 1593, 1595-96 (TTAB
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`1999); TMEP §§1207.01 et seq.
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`The Marks Are Confusingly Similar
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`Marks are compared in their entireties for similarities in appearance, sound, connotation, and
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`commercial impression. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 1321, 110
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`USPQ2d 1157, 1160 (Fed. Cir. 2014) (quoting Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison
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`Fondee En 1772, 396 F.3d 1369, 1371, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005)); TMEP §1207.01(b)-(b)(v).
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`“Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” In re
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`Davia, 110 USPQ2d 1810, 1812 (TTAB 2014) (citing In re 1st USA Realty Prof’ls, Inc., 84 USPQ2d 1581,
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`1586 (TTAB 2007)); In re White Swan Ltd., 8 USPQ2d 1534, 1535 (TTAB 1988)); TMEP §1207.01(b).
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`When comparing marks, the test is not whether the marks can be distinguished in a side-by-side
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`comparison, but rather whether the marks are sufficiently similar in terms of their overall commercial
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`impression that confusion as to the source of the goods offered under the respective marks is likely to
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`result. In re Bay State Brewing Co., 117 USPQ2d 1958, 1960 (TTAB 2016) (quoting Coach Servs., Inc. v.
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`Triumph Learning LLC, 668 F.3d 1356, 1368, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012)); TMEP
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`§1207.01(b).
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`The proper focus is on the recollection of the average purchaser, who retains a general rather
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`than specific impression of trademarks. In re Bay State Brewing Co., 117 USPQ2d at 1960 (citing Spoons
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`Rests. Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d per curiam, 972 F.2d 1353 (Fed.
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`Cir. 1992)); In re C.H. Hanson Co., 116 USPQ2d 1351, 1353 (TTAB 2015) (citing Joel Gott Wines LLC v.
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`Rehoboth Von Gott Inc., 107 USPQ2d 1424, 1430 (TTAB 2013)); TMEP §1207.01(b).
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`The marks at issue are “ER SHOT THERAPY” and “FIRST AID SHOT THERAPY.” Marks are
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`confusingly similar in overall commercial impression where similar terms or phrases or similar parts of
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`terms or phrases appear in the compared marks. See Crocker Nat’l Bank v. Canadian Imperial Bank of
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`Commerce, 228 USPQ 689, 690-91 (TTAB 1986), aff’d sub nom. Canadian Imperial Bank of Commerce v.
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`Wells Fargo Bank, Nat’l Ass’n, 811 F.2d 1490, 1495, 1 USPQ2d 1813, 1817 (Fed. Cir. 1987) (finding
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`COMMCASH and COMMUNICASH confusingly similar); In re Corning Glass Works, 229 USPQ 65, 66 (TTAB
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`1985) (finding CONFIRM and CONFIRMCELLS confusingly similar); In re Pellerin Milnor Corp., 221 USPQ
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`558, 560 (TTAB 1983) (finding MILTRON and MILLTRONICS confusingly similar); TMEP §1207.01(b)(ii)-
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`(iii).
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`In this case, both marks at issue contain the common wording “SHOT THERAPY” which readily
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`imparts to a consumer that the goods will consist of “therapeutic agents” that will be administered as
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`“SHOTS” i.e. as an injection or, as Applicant admits, “a small drink.” See August 24, 2016 Response to
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`Office Action, TSDR p. 4. In addition, the first portion of both marks, “FIRST AID” and “ER,” evoke a
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`similar mental reaction or impression to a consumer as to the use of the goods, which consist of various
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`analgesics and beverages designed to alleviate pain, namely, that the goods will be used for medical
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`emergencies or treatment. Indeed, the definition of “FIRST AID” is understood to mean “emergency
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`treatment that is given to an injured or sick person.” See attached definition from American Heritage
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`Dictionary sent with the February 24, 2016 Office Action TSDR pp. 27-29. Also see definitions from
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`Collins Dictionary and Merriam Webster Dictionary attached to the September 14, 2016 Final Office
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`Action, TSDR p. 2, and pp. 5-6. Finally see, evidence from Acronym Finder, Medicine. Net, and Sharecare,
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`attached to the September 14, 2016 Final Office Action, TSDR pp. 19, 22, 25-28 noting that “ER” stands
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`for “EMERGENCY ROOM.”
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`The Trademark Act not only guards against the misimpression that the senior user is the source
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`of a junior user’s goods, but also protects against “reverse confusion,” where a significantly larger or
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`prominent junior user is perceived as the source of a smaller, senior user’s goods. In re i.am.symbolic,
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`llc, 116 USPQ2d 1406, 1410 (TTAB 2015) (quoting In re Shell Oil Co., 992 F.2d 1204, 1208, 26 USPQ2d
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`1687, 1690 (Fed. Cir. 1993)); Fisons Horticulture, Inc. v. Vigoro Indust., Inc., 30 F.3d 466, 474-75, 31
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`USPQ2d 1592, 1597-98 (3d Cir. 1994).
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`In this case, “ER SHOT THERAPY” and “FIRST AID SHOT THERAPY” are confusingly similar because
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`both readily impart to a consumer that the goods offered will be therapeutic agents administered as
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`“SHOTS” during emergencies or serious medical situations. As such a consumer will likely view
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`Applicant’s mark as an extension of the Registrant’s brand or vice versa i.e. that the same source in the
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`marketplace offers both product lines. As such, the Examining Attorney respectfully submits that the
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`marks are confusingly similar.
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`The Relatedness of the Goods and the Similarity in Channels of Trade and Class of Purchasers Are
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`Undisputed
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`Applicant intends to offer “analgesics” in International Class 5 which are any “drug[s] that
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`relieve pain.” See definition from Merriam Webster Dictionary attached to the February 24, 2016 Office
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`Action, TSDR p. 17. Also see the definition from Spine-Health attached to the September 14, 2016 Final
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`Office Action, TSDR p. 29. Applicant further admits that its goods will be delivered as “SHOTS” (i.e. a
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`small drink). See August 24, 2016 Response to Office Action TSDR, p. 4. (“the Examining Attorney is
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`correct that the word ‘SHOT’ is descriptive as the Applicant’s goods will be offered in ‘SHOT’ form” (i.e.,
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`a small drink)).
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`The relevant goods in the cited registration consist of a variety of “clinical beverages” including
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`“SHOTS” that are designed to alleviate various conditions including “pain” in International Class 5. For
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`example, the Registrant offers “clinical beverages which are clinical and medicinal in nature to address
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`acute and chronic conditions, namely, upset stomach, allergies, pain, migraine headache, hangover;
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`clinical SHOTS which are clinical and medicinal beverages in nature to address acute and chronic
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`conditions, namely, upset stomach, allergies, pain, migraine, headache, hangover.”
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`The goods of the parties need not be identical or even competitive to find a likelihood of
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`confusion. See On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 1086, 56 USPQ2d 1471, 1475 (Fed.
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`Cir. 2000); Recot, Inc. v. Becton, 214 F.3d 1322, 1329, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000) (“[E]ven if
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`the goods in question are different from, and thus not related to, one another in kind, the same goods
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`can be related in the mind of the consuming public as to the origin of the goods.”); TMEP §1207.01(a)(i).
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`The respective goods need only be “related in some manner and/or if the circumstances
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`surrounding their marketing are such that they could give rise to the mistaken belief that [the goods]
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`emanate from the same source.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1369, 101
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`USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB
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`2007)); TMEP §1207.01(a)(i).
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`The Board has noted that with respect to an applicant’s and registrant’s goods, the question of
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`likelihood of confusion is determined based on the description of the goods stated in the application and
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`registration at issue, not on extrinsic evidence of actual use. See Stone Lion Capital Partners, LP v. Lion
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`Capital LLP, 746 F.3d 1317, 1323, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014) (quoting Octocom Sys. Inc. v.
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`Hous. Computers Servs. Inc., 918 F.2d 937, 942, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990)).
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`Absent restrictions in an application and/or registration, the identified goods are “presumed to
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`travel in the same channels of trade to the same class of purchasers.” In re Viterra Inc., 671 F.3d 1358,
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`1362, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (quoting Hewlett-Packard Co. v. Packard Press, Inc., 281
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`F.3d 1261, 1268, 62 USPQ2d 1001, 1005 (Fed. Cir. 2002)). Additionally, unrestricted and broad
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`identifications are presumed to encompass all goods of the type described. See, e.g., Sw. Mgmt., Inc. v.
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`Ocinomled, Ltd., 115 USPQ2d 1007, 1025 (TTAB 2015); In re N.A.D., Inc., 57 USPQ2d 1872, 1874 (TTAB
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`2000).
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`In this case, the parties’ goods undisputedly overlap as both will offer beverages (in the form of
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`“SHOTS”) that alleviate pain. And since there are no restrictions in either the application or registration
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`as to the channels of trade or class of purchasers, the identified goods are, as noted above, “presumed
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`to travel in the same channels of trade to the same class of purchasers.” Viterra, supra. Accordingly, the
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`goods are (undisputedly) related and the trade channels and class of purchasers are (also undisputedly)
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`similar. Therefore, a likelihood of confusion exists.
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`Applicant’s Arguments Do Not Obviate a Likelihood of Confusion
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` Applicant does not dispute the relatedness of the goods, the similarity of the trade channels, or
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`the class of purchasers. However, Applicant argues that the marks are not similar because “FIRST AID”
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`and “ER” have completely different meanings, specifically, that “ER SHOT THERAPY” implies that time is
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`of the essence, whereas “FIRST AID SHOT THERAPY” implies the opposite, specifically, “treatment given
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`to an ill or injured person before regular medical aid can be obtained.” Applicant’s Brief at 5. Applicant’s
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`arguments are unpersuasive given that the definition of “FIRST AID,” as noted above, is “emergency
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`treatment given to a sick person.” See attached definition from American Heritage Dictionary sent with
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`the February 24, 2016 Office Action TSDR pp. 27-29. Also see definitions from Collins Dictionary and
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`Merriam Webster Dictionary attached to the September 14, 2016 Final Office Action, TSDR p. 2, and pp.
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`5-6.
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`Applicant further argues that the marks at issue are “weak” marks entitled to a narrow scope of
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`protection. Applicant’s Brief at 7. In support of this proposition, Applicant states it has made of record
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`“several” third party registrations from the USPTO’s X-Search Database which include the term “FIRST
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`AID,” “ER,” or “EMERGENCY.” Applicant’s Brief at 7-8. Also see Exhibit B to the March 14, 2017 Request
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`for Reconsideration, TSDR 12-28.
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`The Board has repeatedly held that the weakness or dilution of a particular mark is generally
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`determined in the context of the number and nature of similar marks in use in the marketplace in
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`connection with similar goods. See Nat’l Cable Tel. Ass’n, Inc. v. Am. Cinema Editors, Inc., 937 F.2d 1572,
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`1579-80, 19 USPQ2d 1424, 1430 (Fed. Cir. 1991); In re E. I. du Pont de Nemours & Co., 476 F.2d 1357,
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`1361, 177 USPQ 563, 567 (C.C.P.A. 1973).
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`Evidence comprising only a small number of third-party
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`registrations for similar marks with similar goods, as in the present case, is generally entitled to little
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`weight in determining the strength of a mark. See AMF Inc. v. Am. Leisure Products, Inc., 474 F.2d 1403,
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`1406, 177 USPQ 268, 269 (C.C.P.A. 1973); Richardson-Vicks Inc. v. Franklin Mint Corp., 216 USPQ 989,
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`992 (TTAB 1982). These few registrations are “not evidence of what happens in the market place or that
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`customers are familiar with them.” AMF Inc. v. Am. Leisure Prods., Inc., 474 F.2d at 1406, 177 USPQ at
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`269; see Richardson-Vicks Inc. v. Franklin Mint Corp., 216 USPQ at 992.
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`Here, the Applicant has submitted a very small number (16) registrations to establish the
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`weakness of the terms at issue. Moreover, Applicant completely ignores the fact that both marks at
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`issue contain the common wording “SHOT THERAPY” for which there is no evidence of weakness or
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`dilution. Indeed, even if one were to accept, purely for arguendo, that the first portion of each mark is
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`“weak” that would simply mean that a consumer, who retains a general rather than specific impression
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`of trademarks, will likely recall or look to “other portions of the mark” when requesting the goods. See
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`generally, Tektronix, Inc. v. Daktronics, Inc., 187 USPQ 588, 592 (TTAB 1975) aff'd, 534 F.2d 915, 189
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`USPQ 693, 694-95 (CCPA 1976). Here, of course, the “other portion(s)” of each mark are identical—
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`“SHOT THERAPY.” Therefore, Applicant’s arguments actually enhance the Office’s position that a
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`likelihood of confusion exists.
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`Applicant’s arguments as to the lack of fame of the registered mark are also unpersuasive. The
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`fact that a mark is not famous does not prevent a finding that a likelihood of confusion exists. Indeed,
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`both the Court of Appeals for the Federal Circuit and the Board have recognized that marks deemed
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`“weak” or merely descriptive are still entitled to protection under Section 2(d) against the registration
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`by a subsequent user of a similar mark for closely related goods. TMEP §1207.01(b)(ix); see King Candy
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`Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 1401, 182 USPQ 108, 109 (C.C.P.A. 1974); In re Max
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`Capital Grp. Ltd., 93 USPQ2d 1243, 1246 (TTAB 2010).
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`Finally, as to Applicant’s arguments of a lack of actual confusion or that any confusion would be
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`de minimis: the test under Trademark Act Section 2(d) is whether there is a likelihood of confusion. It is
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`not necessary to show actual confusion to establish a likelihood of confusion. Herbko Int’l, Inc. v. Kappa
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`Books, Inc., 308 F.3d 1156, 1165, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002) (citing Giant Food, Inc. v.
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`Nation’s Foodservice, Inc., 710 F.2d 1565, 1571, 218 USPQ 390, 396 (Fed. Cir. 1983)); TMEP
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`§1207.01(d)(ii). The Board stated as follows:
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`[A]pplicant’s assertion that it is unaware of any actual confusion occurring as a result of the
`contemporaneous use of the marks of Applicant and registrant is of little probative value in an
`ex parte proceeding such as this where we have no evidence pertaining to the nature and extent
`of the use by Applicant and registrant (and thus cannot ascertain whether there has been ample
`opportunity for confusion to arise, if it were going to); and the registrant has no chance to be
`heard from (at least in the absence of a consent agreement, which Applicant has not submitted
`in this case).
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`In re Kangaroos U.S.A., 223 USPQ 1025, 1026-27 (TTAB 1984).
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`B. The Examining Attorney Properly Required Applicant to Disclaim “ER SHOT”
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`As a threshold matter, Applicant concedes that the word “SHOT” is descriptive of the goods at
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`issue. See August 24, 2016 Response to Office Action, TSDR p. 4 (“the Examining Attorney is correct that
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`the word ‘SHOT’ is descriptive as the Applicant’s goods will be offered in ‘SHOT’ form” (i.e., a small
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`drink)). Thus, the only issue is whether the wording “ER” is descriptive of a feature, function, use,
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`quality, or characteristic of the goods at issue. See 15 U.S.C. §§1052(e)(1), 1056(a); DuoProSS Meditech
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`Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 1251, 103 USPQ2d 1753, 1755 (Fed. Cir. 2012); TMEP
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`§§1213, 1213.03(a).
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`Determining the descriptiveness of a mark or a term in a mark is done in relation to an
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`applicant’s goods, the context in which the mark is being used, and the possible significance the mark
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`would have to the average purchaser because of the manner of its use or intended use. See In re The
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`Chamber of Commerce of the U.S., 675 F.3d 1297, 1300, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012).
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`
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`The goods at issue are “analgesics” which are defined as substances as that alleviate pain. See
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`definition from Merriam Webster Dictionary attached to the February 24, 2016 Office Action, TSDR p.
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`17. Also see the definition from Spine-Health attached to the September 14, 2016 Final Office Action,
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`TSDR p. 29.
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`In the medical or pharmaceutical context, the wording “ER” is generally understood to refer to
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`the “EMERGENCY ROOM.” See evidence from Acronym Finder, Medicine. Net, Sharecare, attached to
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`the September 14, 2016 Final Office Action, TSDR pp. 19, 22, 25-28 noting that “ER” stands for
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`“EMERGENCY ROOM.” Insofar as the application contains no restrictions as to channels of trade, it must
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`be presumed that the goods travel in all channels of trade, including for use in the “EMERGENCY
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`ROOM.” Indeed, applicant confirms that its’ goods are to be used for medical emergencies such as those
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`encountered in the “ER” or “EMERGENCY ROOM.” See Applicant’s Brief at 5. Taken together, “ER SHOT”
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`readily describes a feature, function, characteristic, purpose or use of the applicant’s goods, namely, the
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`goods are “SHOTS” i.e. small drinks that can be administered in the “ER” or emergency room to relieve a
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`consumer’s intense pain. Accordingly, the Examining Attorney correctly required Applicant to disclaim
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`“ER SHOT” apart from the mark as shown.
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`CONCLUSION
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`The Examining Attorney properly refused registration under Section 2(d) of the Trademark Act
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`for Applicant’s mark “ER SHOT THERAPY” in standard characters for use in relation to “analgesics”
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`(defined as items that relieve pain) due to a likelihood of confusion with U.S. Registration No. 4710506,
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`“FIRST AID SHOT THERAPY” also in standard characters for (undisputedly) overlapping and related
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`goods, specifically a variety of clinical and medical beverages (including “SHOTS”) designed to alleviate
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`pain. Both marks at issue readily impart to a consumer that the goods offered will be therapeutic agents
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`administered as “SHOTS” during emergency or serious medical situations, and as just noted, the goods
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`are overlapping and related. There are no restrictions as to channels of trade or class of purchasers. As
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`such, it must be presumed that the goods travel in similar trade channels and available to all class of
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`purchasers. The Applicant’s arguments concerning the weakness or dilution of the marks at issue or the
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`absence of actual confusion do not obviate a finding of a likelihood of confusion in this case.
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`In addition, the Examining Attorney correctly required Applicant to disclaim “ER SHOT” apart
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`from the mark as shown. Applicant admits that the goods will be delivered as “SHOTS” i.e. a small drink.
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`In the medical or pharmaceutical context, the wording “ER” is generally understood to refer to the
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`“EMERGENCY ROOM.” Insofar as the application contains no restrictions as to channels of trade, it must
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`be presumed that the goods travel in all channels of trade, including for use in the “EMERGENCY
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`ROOM.”
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`WHEREFORE, the undersigned Examining Attorney respectfully requests that the Board affirm
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`both the Examining Attorney’s refusal to register pursuant to Section 2(d) of Trademark Act and the
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`requirement of a disclaimer.
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`Respectfully submitted,
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`/Siddharth Jagannathan/
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`Siddharth Jagannathan
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`Trademark Examining Attorney
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`USPTO, Law Office 114
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`571-272-6563 (phone)
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`Siddharth.Jagannathan@uspto.gov
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`K. Margaret Le
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`Managing Attorney
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`Law Office 114
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