To:
`
`Subject:
`
`Sent:
`Sent As:
`
`DAVID L. MAY(trademarkdocketing@nixonpeabody.com)
`U.S. Trademark Application Serial No. 88985303 - CEDAR BAY GRILLING
`COMPANY LTD. - - 086479-6
`September 11, 2024 03:56:52 PM EDT
`tmng.notices@uspto.gov
`
`Attachments
`
`screencapture-fultonfishmarket-com-products-cedar-planks-17260826724931
`screencapture-fultonfishmarket-com-collections-salmon-17260828982691
`screencapture-popsiefishco-com-products-5x11-alder-grilling-planks-17260829658821
`screencapture-popsiefishco-com-collections-shop-wild-alaskan-seafood-sockeye-salmon-
`17260830103641
`screencapture-wildbayseafoodco-com-products-alder-grilling-plank-17260830694721
`screencapture-olympiaseafood-com-blogs-recipes-cedar-planked-marbled-king-salmon-with-
`herb-butter-17260831654961
`ttabvue-86586432-EXA-8.pdf
`screencapture-cedarbaygrilling-com-collections-usa-products-USA-17260839987551
`screencapture-cedarbaygrilling-com-pages-product-tips-17260840209471
`
`United States Patent and Trademark Office (USPTO)
`Office Action (Official Letter) About Applicant’s Trademark Application
`
`U.S. Application Serial No.  88985303
`
`Mark:   CEDAR BAY GRILLING COMPANY LTD.
`
`Correspondence Address:  
`DAVID L. MAY
`NIXON PEABODY LLP
`SUITE 500
`799 9TH STREET NW
`WASHINGTON DC 20001
`UNITED STATES
`
`Applicant:   Cedar Bay Grilling Company Limited
`
`Reference/Docket No.  086479-6
`
`Correspondence Email Address:   trademarkdocketing@nixonpeabody.com
`
`
`
`
`
`
`REQUEST FOR RECONSIDERATION AFTER FINAL ACTION DENIED
`
`Issue date:   September 11, 2024
`
`Applicant’s request for reconsideration is denied.   See 37 C.F.R. §2.63(b)(3).  The trademark
`
`

`

`examining attorney has carefully reviewed applicant’s request and determined the request did not:  (1)
`raise a new issue, (2) resolve all the outstanding issue(s), (3) provide any new or compelling evidence
`with regard to the outstanding issue(s), or (4) present analysis and arguments that were persuasive or
`shed new light on the outstanding issue(s).  TMEP §§715.03(a)(ii)(B), 715.04(a).  
`
`Applicant presented the same specimen of use for both classes in its application, and has now divided
`out the Class 021 cedar planks which have been refused as the specimen supports only the Class 029
`fish.  While fish and cooking/grilling planks may be sold together as a kit, the Nice & Trademark
`Office's identification and classification practice requires identifying the primary component(s) of the
`kit and providing a specimen of use to support such primary component.  By that logic, the fish shown
`in the one specimen doing "double duty" cannot be the primary component for both the Class 029
`identification of goods and Class 021 identification of goods; nor can the plank be the primary
`component for both classes.  "Planked salmon" is classified in Class 029 to give notice to consumers
`that the items are primarily fish, which also, secondarily, happen to be set atop a plank.
`
`Industry usage shows that seafood/fish companies offer the cooking/grilling planks separately from
`their food items for a variety of practical reasons: the planks can be easily stored and transported
`without concern for the food spoiling and the planks may be sold in bulk to be used with a variety of
`foods from other, non-proprietary sources.  The planks also do not have to be custom sized to fit the
`particular filet of fish as a bundled kit when sold separately and can potentially be re-used if certain
`methods are employed.  Lastly, the planks show the company's logo/name burned into the wood, as yet
`another indicator of specific and separate source.   See  the attached third party examples from
`www.fultonfishmarket.com,
`www.popsiefishco.com,
`www.wildbayseafood.com
`and
`www.olympiaseafood.com for evidence of industry practice in selling fish separate from the wood
`planks; this is what would be expected of applicant as well, particularly as it parsed its goods into two
`separate classes and has not limited its Class 021 goods to being used only with salmon.
`
`This examining attorney confronted an analogous issue in a prior decision where a company presented
`a plastic beverage bottle bearing a mark and argued that the specimen supported the bottle caps parsed
`separately in Class 020 as opposed to the Class 032 beverages (which had been deleted from the
`application).  The attached evidence (while not precedential) shows that the Trademark Trial and
`Appeal Board affirmed the specimen rejection as the mark appeared on the bottle but not the caps
`themselves, and the mark was not shown with caps sold separately as stand-alone goods.  In short, the
`Board agreed in In re Wholesale & Retail Distribution, Inc. (June 4, 2018) that "consumers are
`purchasing Applicant's beverages, not the dispensing and dosing caps" and affirmed the refusal to
`register. 
`
`from
`(see  attached
`items
`fish
`applicant's
`are purchasing
`consumers
`Similarly, here,
`www.cedarbaygrilling.com) primarily for the fish, not the plank; and although the packaging refers to
`cedar planks, and certainly there is no dispute that the packaging does contain a plank underneath the
`fish -- though not actually shown in the cellophane "see-through" portion of the packaging -- these
`items are found in the frozen seafood section of the grocery.  Plain cedar planks would not be sold in a
`freezer section of a grocery as they are shelf-stable items which do not require refrigeration or 
`freezing.  
`
`As discussed previously, the fact that prior examiners permitted similar specimens, or the same
`specimen for both classes of goods, is not persuasive.  When determining whether an applied-for mark
`is eligible for registration, each application must be considered on its own record. In re Cordua Rests.,
`Inc., 823 F.3d 594, 600, 118 USPQ2d 1632, 1635 (Fed. Cir. 2016) (“[The Federal Circuit], like the
`
`

`

`Board, must evaluate the evidence in the present record to determine whether there is sufficient
`evidence . . . .”); In re Shinnecock Smoke Shop, 571 F.3d 1171, 1174, 91 USPQ2d 1218, 1221 (Fed.
`Cir. 2009) (“Applicant’s allegations regarding similar marks are irrelevant because each application
`must be considered on its own merits.”); see also In re Nett Designs, Inc., 236 F.3d 1339, 1342, 57
`USPQ2d 1564, 1566 (Fed. Cir. 2001) (“Even if some prior registrations had some characteristics
`similar to Nett Designs’ application, the PTO’s allowance of such prior registrations does not bind the
`[Trademark Trial and Appeal] Board or this court.”).
`
`the Office action dated May 6,
`in
`the specimen requirement made final
`Accordingly,
`2024 is  maintained and continued:  See TMEP §§715.03(a)(ii)(B), 715.04(a).  
`
`If applicant has already filed an appeal with the Trademark Trial and Appeal Board, the Board will
`be notified to resume the appeal.   See TMEP §715.04(a).  
`
`If applicant has not filed an appeal and time remains in the response period for the final Office
`action, applicant has the remainder of that time to (1) file another request for reconsideration that
`complies with and/or overcomes 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).
`
`
`/Toby Bulloff/
`Toby Bulloff
`Trademark Examining Attorney
`Law Office 119
`(571) 270-1531
`Toby.Bulloff@USPTO.GOV
`
`
`
`

`

`Lys
`
`aaa
`
`at 03:24:46, 09/11/2024
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`PentonFP"
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`FISH
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`FULTON FISH MARKET CEDAR
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`2 Grilling Planks
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`THE POPSIE FISH COMPANY
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`YourTrusted and Sustainable Source for Wild Caught Sockeye Salmon,Halibut, Pacific Cod,
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`Home> Alder Grilling Plank
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`» Cedar Planked Marbled King Salmon with Herb Butter
`
`Cedar Planked Marbled King Salmon with Herb
`R tty
`Witter
`Posted by 2 on May 08, 2014
`
`This herb butter is so good you'll wantto lick the spoon. Weoffered a similar compoundbutter for a cedar planked halibut
`recipe, so you might notice a theme- whenthere's a plank involved| almost always get out the butter. (yum) There's
`
`something about that smoky,garlicky, herby flavor combothat| just
`*love*.
`
`For the salmon you'll want about 6 to 80z (half a poundorless) per person, and get
`
`your hands on a cedar plank. We have them at the shop for $4, andif you useit again within
`
`a dayor two youcan usually use them twice depending on howit holds up to yourparticular
`
`grill.
`Start hu cnaking vaur cedar nlank | cat mina in a caccarala dich andfill it in with water far ahaut an haur
`
`
`
`Fear
`‘
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`Leman and Niian
`
`

`

`ester ney eerie peer Senet entrain eek erste ae eee ene wane Metres nnn ne Mee pereee vane ewer Menenrne Mer eee
`
`weee ye
`December06, 2021
`
`If you're using charcoal- get yourgrill going!
`
`
`
`:
`
`For the butter you'll need the following:
`1 stick butter
`6 clovesgarlic
`1T dry OR 2T fresh herbs(| used a combinationof fresh herbs from my garden -
`thyme,basil, parsley, dill and oregano.)
`Thejuice of one lemon
`
`Categories
`ahi
`ahi tuna
`al dente
`albacore
`amuse
`amuse bouche
`In a food processor, toss in the garlic cloves and pulse to minceveryfinely. Add the herbs and pulse a few more times to
`appetizer
`mince. Add the room temperature butter (orif you pull it right out of the fridge maybe microwaveit for 5 seconds) and the
`artichoke
`lemon juice and blend for 15 seconds or so to combineall ingredients. Spoon out of the container andintoalittle bowl. We'll
`asaparagus
`use abouthalfofit for our fish - the other half can be refrigerated for several days or wrappedin foil and frozenindefinitely.
`asparagus
`Once yourcoals are looking good and yourplankis happily waterlogged, place the salmonontheplank with the skin side down
`bacon
`and salt and pepperthe fish. Addalayerof herb butter to the topof thefish and position so that as the butter melts,it will coat
`bake
`
`he salmon. Set the plank onthegrill and position so thatit will burn
`baked
`
`lightly on the bottom but not burst entirely into flames. We're going for a
`
`baking
`low smolder so that yourfish will take on a fabulously smokyflavor from
`
`basil
`he burning plank. To accomplishthis, put the lid on the grill and vent
`
`appropriately - no flames onthefish, but lots of heat and some smoke! Set
`bayscallop
`
`our timer for about 30 minutes. We're cookingindirectly soit will take
`big
`
`much longerto cook than it would if you hadit directly on thegrill. Check
`black cod
`
`he fish every 5 minutes or so to make sure you don't need to do any
`
`blue cheese
`adjusting to produce the optimalplanking, and that's about it! Onceit's
`blueberry
`done, serve with a crisp green salad and somecrusty bread to sop up any ‘extra’ butter. Freshfruit for desert! Enjoy!
`boil
`On
`bouche
`bowl
`breadcrumb
`breadcrumbs
`breaded
`Bristol Bay
`broiled fish
`buerre blanc
`
`Tags: Recipes, Today's Fish
`
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`

`

` This Opinion is Not a
`Precedent of the TTAB
`
`
`
`Mailed: June 4, 2018
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____
`
`Trademark Trial and Appeal Board
`_____
`
`In re Wholesale & Retail Distribution, Inc.
`_____
`
`Serial No. 86586432
`_____
`
`Barry L. Haley and Kristina M. Dimaggio of Malin Haley Dimaggio & Bowen, P.A.,
`for Wholesale & Retail Distribution, Inc.
`Toby E. Bulloff, Trademark Examining Attorney, Law Office 119,
`J. Brett Golden, Managing Attorney.
`_____
`
`
`Before Lykos, Adlin and Coggins,
`Administrative Trademark Judges.
`
`
`Opinion by Lykos, Administrative Trademark Judge:
`Wholesale & Retail Distribution, Inc. (“Applicant”) seeks to register on the
`
`Principal Register the mark OXZGEN in standard characters for goods ultimately
`
`identified as “[n]on-metal dosing caps for bottles; non-metal dispensing caps for
`
`containers” in International Class 20.1 Applicant has appealed the Trademark
`
`Examining Attorney’s final refusal to register the mark under Trademark Act
`
`
`1 Application Serial No. 86586432, filed April 3, 2015, under Section 1(b) of the Trademark
`Act, 15 U.S.C. § 1051(b).
`
`

`

`Serial No. 86586432
`
`Sections 1 and 45, 15 U.S.C. §§ 1051 and 1127, on the ground that Applicant’s
`
`specimens fail to show the applied-for mark in use in commerce in connection with
`
`any of the goods specified in the statement of use.
`
`By way of background, Applicant originally applied to register its mark for two
`
`classes of goods: the International Class 20 goods identified above and “non-alcoholic
`
`beverages, namely, sports drinks; energy drinks; isotonic drinks; hypertonic drinks;
`
`and hypotonic drinks” in International Class 32. In the initial Office Action dated
`
`July 13, 2015, the Examining Attorney refused registration of the mark for the
`
`International Class 32 goods under Trademark Act Sections 2(e)(1), 15 U.S.C.
`
`§ 1052(e)(1) and 2(a), 15 U.S.C. § 1052(a). In response, Applicant deleted the
`
`International Class 32 goods from the application, thereby rendering the refusals
`
`moot. The application was then approved for publication solely for the goods listed in
`
`International Class 20. Following issuance of a notice of allowance, on September 1,
`
`2016, Applicant submitted a statement of use and two specimens for International
`
`Class 20 described as “product[s] displaying the mark.” The specimens are reprinted
`
`below:
`
`
`
`
`
`- 2 -
`
`

`

`
`
`Serial No. 86586432
`
`
`
`
`
`
`
`
`
`- 3 -
`
`

`

`Serial No. 86586432
`
`
`The Examining Attorney found both specimens unacceptable on the ground that they
`
`did not show use of Applicant’s mark in connection with the goods because “the mark
`
`appears on the bottles but not the caps themselves; nor is the mark shown with caps
`
`sold separately as stand-alone goods.” October 19, 2016 Office Action at 1. Applicant
`
`was given the opportunity to submit a “verified substitute specimen” but instead
`
`argued against the refusal:
`
`
`
`- 4 -
`
`

`

`Serial No. 86586432
`
`Applicant’s specimen is a picture of the mark OXZGEN on
`the bottle/container which is used in connection with its
`non-metal dosing/dispensing caps. Here, the mark is shown
`in use in commerce because it is prominently featured on
`normal commercial packaging for Applicant’s goods. See
`TMEP Section 904.03(c). In this case, the mark shown on
`the bottle/container is normal packaging for Applicant's
`dosing caps which dispense liquid into the container. Such
`is the normal “mode of use” for Applicant’s “non-metal
`dosing caps for bottles, non-metal dispensing caps for
`containers.” Moreover, the mark on the container also
`functions as a label or tag since it would be impractical to
`put the mark on the actual dispensing cap.
`
`
`April 19, 2017 Response to Office Action. Unconvinced, the Examining
`
`Attorney issued a final refusal:
`
`[T]he applied-for mark looks to be the brand of the
`beverage (deleted from the Statement of Use), offering
`different flavors under its subbrands of “RELAX” and
`“ENERGY.” There is nothing directing consumers to a
`special kind of cap or dosing mechanism under any name.
`In fact, as shown, the cap looks like any other basic
`beverage cap and a consumer would not perceive this to be
`a special feature of the bottle or an item sold on its own for
`use with other kinds of bottles or containers.
`
`
`May 11, 2017 Final Office Action at 1. Applicant then filed a notice of appeal, which
`
`is now briefed.
`
`On appeal, Applicant reiterates the arguments made during prosecution, adding
`
`that the “non-metal caps are sold together with the bottles for beverages;” that “[t]he
`
`dispensing caps are attached to the bottles in order to serve the purpose of dispensing
`
`the liquid or powder into the beverage;” and that “it is practical to place the mark on
`
`the bottle instead of the cap itself because consumers can readily see the trademark
`
`in large capital letters on the container/packaging.” Brief, pp. 2-3; 4 TTABVUE 6-7.
`
`
`
`- 5 -
`
`

`

`Serial No. 86586432
`
`After careful consideration of Applicant’s specimens and Applicant’s reasons why
`
`the mark cannot be affixed to the goods, we agree with the Examining Attorney that
`
`the specimens fail to show use of OXZGEN as a trademark for any of the goods
`
`identified in the statement of use.
`
`A statement of use must include a specimen showing the applied-for mark in use
`
`in commerce for each class of goods specified in the statement of use. Trademark Act
`
`§§ 1 and 45, 15 U.S.C. §§ 1051, 1127; 37 C.F.R. §§ 2.56(a), 2.88(b)(2). Section 1(d)(1)
`
`of the Trademark Act, 15 U.S.C. § 1051(d)(1), requires that the applicant file a
`
`“specimen” or facsimile “of the mark as used in commerce.” Trademark Rule 2.56(a),
`
`37 C.F.R. § 2.56(a), amplifies that an applicant filing an intent-to-use application
`
`must file “one specimen . . . showing the mark as used in commerce on or in connection
`
`with the goods or services.” Section 45 of the Trademark Act, 15 U.S.C. § 1127, states
`
`that a mark is deemed to be in use in commerce:
`
`(1) on goods when—
`(A) it is placed in any manner on the goods or their
`containers or the displays associated therewith or on the
`tags or labels affixed thereto, or if the nature of the goods
`makes such placement impracticable, then on document