`
`77/322290
`
`*77322290*
`
`RESPOND TO THIS ACTION:
`http://www.uspto.gov/teas/eTEASpageD.htm
`
`(cid:160)G
`
`ENERAL TRADEMARK INFORMATION:
`http://www.uspto.gov/main/trademarks.htm
`
`(cid:160)(cid:160)(cid:160) CORRESPONDENT ADDRESS:
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
`
`THEODORE A. BREINER(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)
`
`BREINER & BREINER, L.L.C.
`P.O. BOX 320160
`
`(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) SERIAL NO:(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) MARK: (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)
`ALEXANDRIA, VA 22320-0160(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) APPLICANT:(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
`(cid:160) Agrium Inc.(cid:160)(cid:160)(cid:160)(cid:160) (cid:160)(cid:160)(cid:160)(cid:160)(cid:160) CORRESPONDENT’S REFERENCE/DOCKET NO :(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)
`7002/TM(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160) CORRESPONDENT E-MAIL ADDRESS:(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
`
`OFFICE ACTION
`
`(cid:160)T
`
`O AVOID ABANDONMENT, THE OFFICE MUST RECEIVE A PROPER RESPONSE TO THIS OFFICE ACTION WITHIN 6 MONTHS
`OF THE ISSUE/MAILING DATE.
`
`(cid:160)I
`
`SSUE/MAILING DATE:
`
`(cid:160)T
`
`(cid:160)(cid:160)
`
`HIS IS A FINAL ACTION.
`
`This Office action is in response to applicant’s communication filed on July 16, 2008. (cid:160) The applicant (1) amended the description of the mark,
`(2) argued against the refusal to register the mark under Sections 1, 2 and 45 of the Trademark Act, and (3) claimed that the cited registrations
`are owned by applicant’s related company. (cid:160)(cid:160) No. 1 is acceptable.
`
`(cid:160)T
`
`(cid:160)T
`
`he Section 2(f) claim is denied.
`
`he refusal to register the mark under Section 2(d) and Section 2(e)(5) is continued and made FINAL.
`
`(cid:160)R
`
`efusal Under Section 2(e)(5)
`The refusal under Trademark Act Section 2(e)(5), 15 U.S.C. §1052(e)(5), is now made FINAL for the reasons set forth below.(cid:160) 37 C.F.R.
`§2.64(a).
`
`(cid:160)T
`
`he applicant seeks to register the color green as applied on the granules of fertilizers.
`
`(cid:160)A
`
` color may be functional if it yields a utilitarian or functional advantage, for example, yellow or orange for safety signs.(cid:160) Brunswick Corp. v.
`British Seagull Ltd., 35 F.3d 1527, 32 USPQ2d 1120 (Fed. Cir. 1994), cert. denied, 514 U.S. 1050 (1995) (color black functional for outboard
`motors because it provides competitive advantages in terms of being compatible with a wide variety of boat colors and making the engines
`appear smaller); In re Ferris Corporation, 59 USPQ2d 1587 (TTAB 2000) (color pink used on surgical wound dressings is functional because
`the actual color of the goods closely resembles Caucasian human skin); In re Orange Communications, Inc., 41 USPQ2d 1036 (TTAB 1996)
`(colors yellow and orange held to be functional for public telephones and telephone booths, since they are more visible under all lighting
`conditions in the event of an emergency); In re Howard S. Leight & Associates Inc., 39 USPQ2d 1058 (TTAB 1996) (color coral held to be
`functional for earplugs, because it is more visible during safety checks).
`
`(cid:160)A
`
` color may also be considered functional if it is more economical to manufacture or use.(cid:160) For example, a color may be a natural by-product of
`the manufacturing process for the goods.(cid:160) In such a case, appropriation of the color by a single party would place others at a competitive
`disadvantage by requiring them to alter the manufacturing process.
`
`(cid:160)T
`
`he applicant stated that (1) the color green does not serve any other purpose as used on the goods other than as a trademark, (2) the color green
`
`
`
`is not the natural by-product of the manufacturing process, and (3) it uses the color green as a trademark to identify a source of origin of its
`goods.
`
`(cid:160)I
`
`n support of registration under Section 2(f), applicant submitted advertising materials for the color green on the fertilizer.(cid:160) However, applicant’s
`claim of acquired distinctiveness remains insufficient to overcome the refusal.(cid:160) The applicant has the burden of establishing the distinctiveness of
`the mark.(cid:160) See TMEP §§1202.04(d), 1202.04(e) and 1212 et seq.(cid:160) This has not been done in the present case.
`
`(cid:160)I
`
`n Qualitex Co. v. Jacobson Products Co., Inc., 115 S.Ct. 1300, 34 USPQ2d 1161, 1162-3 (1995), the Supreme Court explained that marks
`consisting of a single color applied to the goods were unlike inherently distinctive words and designs which are immediately recognizable to
`consumers as marks, but that such color marks could attain “secondary meaning.” (cid:160) The Court of Appeals for the Federal Circuit has noted that
`“by their very nature color marks carry a difficult burden in demonstrating distinctiveness and trademark character.” (cid:160) In re Owens-Corning
`Fiberglas Corp., 774 F.2d 1116, 227 USPQ 417, 424 (Fed. Cir. 1985).(cid:160) The Court reviewed the evidentiary submission of the applicant in
`Owens-Corning, which included advertising materials that emphasized the “pink” mark; radio and television commercials which highlighted the
`“pink” aspect of applicant’s fiberglass and a consumer survey which showed consumer recognition as to the source of pink insulation to be
`50%.(cid:160) The Court also noted that the applicant was the only manufacturer of this type of insulation that colored its insulation.(cid:160) Therefore, there
`was no “competitive need” for this color.
`
`(cid:160)I
`
`n cases involving color, it is crucial to prove distinctiveness to promote the color as a trademark.(cid:160) The fact that the colored goods appear in an
`advertisement or that the product is successful is not persuasive evidence that color is recognized as a mark.(cid:160) The Trademark Trial and Appeal
`Board has found that color marks, when properly promoted, can function as source indicators.(cid:160) The Board has held that the colors applied to
`livestock waterers function as a mark based on the following:
`
`(cid:160)[
`
`T]he use thereof in its brochures and literature in the manner of a trademark, the reference in the advertisement material to the distinctive red and
`yellow paint job on its waterers and the acknowledgment by users of poultry and animal waterers that when they see a waterer with the colors red
`and yellow, they know it’s a product originating with applicant....
`
`(cid:160)I
`
`n re Richie Mfg. Co., 170 USPQ 291, 292 (TTAB 1971).
`
`(cid:160)I
`
`n this case, the proposed mark consists of the color green as applied to the fertilizers.(cid:160) Potential purchasers do not initially view such use of
`color as a trademark for the goods but as ornamentation.(cid:160) The relevant purchasing public would not view the proposed mark as being a source
`indicator but merely as ornamentation for the goods.
`
`(cid:160)L
`
`ong use of the mark is one relevant consideration in determining whether a mark has acquired distinctiveness.(cid:160) See In re Uncle Sam Chemical
`Co., Inc., 229 USPQ 233 (TTAB 1986) (§2(f) claim of acquired distinctiveness of SPRAYZON for “cleaning preparations and degreasers for
`industrial and institutional use” found persuasive where applicant had submitted declaration of its president supporting sales figures and attesting
`to over eighteen years of substantially exclusive and continuous use); In re Packaging Specialists, Inc., 221 USPQ 917, 920 (TTAB 1984)
`(evidence submitted by applicant held insufficient to establish acquired distinctiveness of PACKAGING SPECIALISTS, INC., for contract
`packaging services, notwithstanding, inter alia, continuous and substantially exclusive use for sixteen years, deemed “a substantial period but
`not necessarily conclusive or persuasive”). (cid:160) However, in this case the amount of time the proposed mark has been used is not overwhelming.
`
`(cid:160)L
`
`arge scale expenditures in promoting and advertising goods under a particular mark are significant to indicate the extent to which a mark has
`been used.(cid:160) However, the examining attorney must examine the advertising material to determine how the proposed mark is being used therein,
`the commercial impression created by such use, and what such use would mean to purchasers.(cid:160) In re Redken Laboratories, Inc., 170 USPQ 526,
`529 (TTAB 1971) (evidence adduced by applicant pursuant to §2(f) held insufficient to establish acquired distinctiveness of THE SCIENTIFIC
`APPROACH, for lectures concerning hair and skin treatment, notwithstanding ten years of use, over $500,000 in promotion and sponsorship
`expenses, and the staging of over 300 shows per year).(cid:160) See also In re E.I. Kane, Inc., 221 USPQ 1203, 1206 (TTAB 1984) (refusal to register
`OFFICE MOVERS, INC., for moving services, affirmed notwithstanding §2(f) claim based on, inter alia, evidence of substantial advertising
`expenditures.(cid:160) “There is no evidence that any of the advertising activity was directed to creating secondary meaning in applicant’s highly
`descriptive trade name.”); Packaging Specialists, Inc., 221 USPQ at 919 (evidence held insufficient to establish acquired distinctiveness of
`PACKAGING SPECIALISTS, INC., for contract packaging services, notwithstanding, inter alia, $50,000 in advertising expenses over a multi-
`year period, the Board finding the sum “not impressive as adequate to achieve general consumer identification for an enterprise operating
`nationally in ... a large service industry”); In re Kwik Lok Corp., 217 USPQ 1245 (TTAB 1983) (evidence held insufficient to establish acquired
`distinctiveness for configuration of bag closures made of plastic, notwithstanding applicant’s statement that advertising of the closures involved
`several hundred thousands of dollars, where there was no evidence that the advertising had any impact on purchasers in perceiving the
`configuration as a mark).
`
`(cid:160)A
`
`ffidavits or declarations asserting recognition of the mark as a source indicator are relevant in establishing acquired distinctiveness.(cid:160) However,
`the value of the affidavits or declarations depends on the statements made therein and the identity of the affiant or declarant.(cid:160) Furthermore, proof
`of distinctiveness requires more than proof of the existence of a relatively small number of people who associate a mark with the applicant.(cid:160) In re
`Paint Products Co., 8 USPQ2d 1863, 1866 (TTAB 1988) (“Because these affidavits were sought and collected by applicant from ten customers
`who have dealt with applicant for many years, the evidence is not altogether persuasive on the issue of how the average customer for paints
`
`
`
`(cid:160) See also In re Gray Inc., 3 USPQ2d 1558, 1560
`perceives the words ‘PAINT PRODUCTS CO.’ in conjunction with paints and coatings.”).
`(TTAB 1987) (affidavit of applicant’s counsel expressing his belief that the mark has acquired secondary meaning accorded “no probative value
`whatsoever” because, among other reasons, the statement is subject to bias); In re Petersen Mfg. Co., 2 USPQ2d 2032 (TTAB 1987)
`(declarations from customers which stated that designs used by applicant indicate to the declarant that the applicant is the source of the goods, but
`which did not refer to or identify the designs with any specificity, not considered persuasive); In re Bose Corp., 216 USPQ 1001, 1005 (TTAB
`1983), aff’d , 772 F.2d 866, 227 USPQ 1 (Fed. Cir. 1985) (retailer’s statement that he has been in contact with many purchasers of loudspeaker
`systems of whom a substantial number would recognize depicted design as originating with applicant deemed competent evidence of secondary
`meaning); In re Flex-O-Glass, Inc., 194 USPQ 203, 206 (TTAB 1977) (“[T]he fact that the affidavits may be similar in format and expression is
`of no particular significance ... since the affiants have sworn to the statements contained therein.”). (cid:160) In this case, the applicant has not submitted
`any affidavits or declarations asserting recognition of the mark as a source indicator.
`
`(cid:160)H
`
`ere, applicant just submitted samples of advertisement materials as evidence of acquired distinctiveness, however, such evidence is insufficient
`to overcome the refusal. None of the advertisement materials references the color green.(cid:160) Just showing the goods in color in advertisements is
`not enough to establish acquired distinctiveness. Therefore, the evidence currently of record is inadequate to establish acquired distinctiveness
`
`in this case.(cid:160)(cid:160)(cid:160)
`Likelihood of Confusion
`For the reasons set forth below, the refusal under Trademark Act Section 2(d) is now made FINAL with respect to U.S. Registration No(s).
`2551388 and 2554423.(cid:160) See 15 U.S.C. §1052(d); 37 C.F.R. §2.64(a).
`
`(cid:160)T
`
`rademark Act Section 2(d) bars registration of an applied-for mark that so resembles a registered mark that it is likely that a potential consumer
`would be confused or mistaken or deceived as to the source of the goods and/or services of the applicant and registrant.(cid:160) See 15 U.S.C. §1052(d).(cid:160)
`The court in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (C.C.P.A. 1973) listed the principal factors to be considered
`when determining whether there is a likelihood of confusion under Section 2(d).(cid:160) See TMEP §1207.01.(cid:160) However, not all of the factors are
`necessarily relevant or of equal weight, and any one factor may be dominant in a given case, depending upon the evidence of record.(cid:160) In re
`Majestic Distilling Co., 315 F.3d 1311, 1315, 65 USPQ2d 1201, 1204 (Fed. Cir. 2003); see In re E. I. du Pont, 476 F.2d at 1361-62, 177 USPQ at
`567.
`
`(cid:160)I
`
`n this case, the following factors are the most relevant:(cid:160) similarity of the marks, similarity of the goods and/or services, and similarity of trade
`channels of the goods and/or services.(cid:160) See In re Opus One, Inc., 60 USPQ2d 1812 (TTAB 2001); In re Dakin’s Miniatures Inc. , 59 USPQ2d
`1593 (TTAB 1999); In re Azteca Rest. Enters., Inc., 50 USPQ2d 1209 (TTAB 1999); TMEP §§1207.01 et seq.
`
`(cid:160)T
`
`he applicant applied to register the color green for fertilizers.(cid:160) The registered marks are the color green for granular chemical preparations for
`use in the manufacture of fertilizers; and for granular fertilizer ingredient of blended fertilizers for professional, commercial, and domestic use.
`
`(cid:160)T
`
`he applicant requested that the refusal under Section 2(d) be withdrawn since the cited registrations are owned by applicant’s related
`company.(cid:160)(cid:160) However, a legal relationship with the related company is insufficient to overcome the likelihood of confusion unless the parties
`constitute a single source.
`
`(cid:160)A
`
`pplicant indicates that it has a legal relationship with the registrant in the cited registrations.(cid:160) However, a legal relationship between the parties
`is insufficient to overcome a likelihood of confusion unless the parties constitute a “single source.” (cid:160) That is, the legal relationship between the
`parties must exhibit a “unity of control” over the nature and quality of the goods and/or services in connection with which the trademarks and/or
`service marks are used, and a “unity of control” over the use of the trademarks and/or service marks. (cid:160) See In re Wella A.G., 5 USPQ2d 1359,
`1361 (TTAB 1987); see also TMEP §§1201.03, 1201.07.
`
`(cid:160)U
`
`nity of control is presumed in instances where, absent contradictory evidence, one party owns all of another entity, or substantially all of
`another entity and asserts control over the activities of the other entity.(cid:160) Such ownership is established, for example, when one party owns all or
`substantially all of the stock of another or when one party is a wholly owned subsidiary of another.(cid:160) See In re Wella A.G., 5 USPQ2d at 1361;
`TMEP §1201.07(b)-(b)(ii).
`
`(cid:160)H
`
`owever, in most other situations, additional evidence is required to show unity of control.(cid:160) For example, if the parties are sister corporations or
`if the parties share certain stockholders, directors or officers in common, additional evidence must be provided to show how the parties
`constitute a single source.(cid:160) See In re Pharmacia, Inc., 2 USPQ2d 1883, 1884 (TTAB 1987); TMEP §1201.07(b)(iii).(cid:160) Additional evidence is also
`required if the relationship between the parties is that of licensor and licensee.(cid:160) See Pneutek, Inc. v. Scherr, 211 USPQ 824, 832-33 (TTAB 1981);
`TMEP §1201.07(b)(iv).
`
`(cid:160)T
`
`herefore, applicant must provide a verified statement explaining the nature of the legal relationship between the parties.(cid:160) If neither party owns
`all or substantially all of the other party, applicant must also provide a detailed written explanation and any documentary evidence showing the
`parties’ “unity of control” over the nature and quality of the goods and/or services in connection with which the trademarks and/or service
`marks are used, and the parties’ “unity of control” over the use of the trademarks and/or service marks.
`(cid:160) The explanation must be verified with
`an affidavit or signed declaration under 37 C.F.R. §§2.20, 2.33.(cid:160) TMEP §1201.07(b)(ii)-(iii).(cid:160) However, if one party owns all of the other entity,
`
`
`
`and there is no contradictory evidence of record, the written statement need not be verified.(cid:160) TMEP §1201.07(b)(i).
`
`The applicant’s mark and the registered marks are identical, namely, the color green as applied to the fertilizers. (cid:160) If the marks of the respective
`parties are identical, the relationship between the goods or services of the respective parties need not be as close to support a finding of
`likelihood of confusion as might apply where differences exist between the marks.(cid:160) Century 21 Real Estate Corp. v. Century Life of America, 970
`F.2d 874, 877, 23 USPQ2d 1698, 1701 (Fed. Cir. 1992), cert. denied 506 U.S. 1034 (1992); In re Opus One Inc., 60 USPQ2d 1812, 1815 (TTAB
`2001); Amcor, Inc. v. Amcor Industries, Inc., 210 USPQ 70 (TTAB 1981); TMEP §1207.01(a).
`
`(cid:160)T
`
`he goods of the parties need not be identical or directly competitive to find a likelihood of confusion.(cid:160) Instead, they need only be related in
`some manner, or the conditions surrounding their marketing are such that they would be encountered by the same purchasers under
`circumstances that would give rise to the mistaken belief that the goods and/or services come from a common source.(cid:160) On-line Careline Inc. v.
`America Online Inc., 229 F.3d 1080, 56 USPQ2d 1471 (Fed. Cir. 2000); In re Martin’s Famous Pastry Shoppe , Inc., 748 F.2d 1565, 223 USPQ
`1289 (Fed. Cir. 1984); In re Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991); In re Corning Glass Works, 229 USPQ 65 (TTAB 1985); In
`re Rexel Inc., 223 USPQ 830 (TTAB 1984); Guardian Prods. Co., Inc. v. Scott Paper Co., 200 USPQ 738 (TTAB 1978); In re Int’l Tel. & Tel.
`Corp., 197 USPQ 910 (TTAB 1978); TMEP §1207.01(a)(i).(cid:160) Here, applicant’s mark and the registered marks are used in connection with
`fertilizers and fertilizers ingredients.(cid:160) Since applicant’s and registrant’s goods travel in the same trade channels, confusion as to origin of said
`goods is likely.
`
`(cid:160)T
`
`he overriding concern is not only to prevent buyer confusion as to the source of the goods and/or services, but to protect the registrant from
`adverse commercial impact due to use of a similar mark by a newcomer.(cid:160) See In re Shell Oil Co., 992 F.2d 1204, 1208, 26 USPQ2d 1687, 1690
`(Fed. Cir. 1993).(cid:160) Therefore, any doubt regarding a likelihood of confusion determination is resolved in favor of the registrant.(cid:160) TMEP
`§1207.01(d)(i); see Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1265, 62 USPQ2d 1001, 1003 (Fed. Cir. 2002); In re Hyper
`Shoppes (Ohio), Inc., 837 F.2d 463, 464-65, 6 USPQ2d 1025, 1025 (Fed. Cir. 1988).(cid:160) Accordingly, the refusal to register the mark under Section
`2(d) is made FINAL.
`
`(cid:160)O
`
`ptions
`If applicant does not respond within six months of the mailing date of this final Office action, the application will be abandoned.(cid:160) 15 U.S.C.
`
`§1062(b); 37 C.F.R. §2.65(a).(cid:160) Applicant may respond to this final Office action by:(cid:160)(cid:160)
`
`(1)(cid:160)(cid:160)(cid:160)(cid:160) Submitting a response that fully satisfies all outstanding requirements, if feasible; and/or
`
`(2)(cid:160)(cid:160)(cid:160)(cid:160) Filing an appeal to the Trademark Trial and Appeal Board, with an appeal fee of $100 per class.
`
`37 C.F.R. §§2.6(a)(18), 2.64(a); TBMP ch. 1200; TMEP §714.04.
`
`(cid:160)I
`
`n certain rare circumstances, a petition to the Director may be filed pursuant to 37 C.F.R. §2.63(b)(2) to review a final Office action that is
`limited to procedural issues.(cid:160) 37 C.F.R. §2.64(a); TMEP §714.04; see 37 C.F.R. §2.146(b); TBMP §1201.05; TMEP §1704 (explaining
`petitionable matters).(cid:160) The petition fee is $100.(cid:160) 37 C.F.R. §2.6(a)(15).
`
`/Alice Benmaman/
`Trademark Attorney
`Law Office 116
`(571) 272-9126
`
`(cid:160)(cid:160)(cid:160)
`
`RESPOND TO THIS ACTION:(cid:160)Applicant should file a response to this Office action(cid:160)online using the form at
`http://www.uspto.gov/teas/eTEASpageD.htm, waiting 48-72 hours if applicant received notification of the Office action via e-mail.(cid:160)(cid:160)For
`technical assistance with the form, please e-mail TEAS@uspto.gov.(cid:160) For(cid:160)questions about the Office action itself, please contact the assigned
`examining attorney.(cid:160)(cid:160) Do not respond to this Office action by e-mail;(cid:160)the USPTO does not accept e-mailed responses .
`
`(cid:160)I
`
`f responding by paper mail, please include the following information: the application serial number, the mark, the filing date and the name,
`title/position, telephone number and e-mail address of the person signing the response.(cid:160) Please use the following address: Commissioner for
`Trademarks, P.O. Box 1451, Alexandria, VA 22313-1451.
`
`(cid:160)(cid:160)(cid:160)(cid:160)
`(cid:160)
`(cid:160)
`(cid:160)(cid:160)(cid:160)(cid:160)
`(cid:160)
`
`
`STATUS CHECK: Check the status of the application at least once every six months from the initial filing date using the USPTO Trademark
`Applications and Registrations Retrieval (TARR) online system at http://tarr.uspto.gov.(cid:160) When conducting an online status check, print and
`maintain a copy of the complete TARR screen.(cid:160) If the status of your application has not changed for more than six months, please contact the
`assigned examining attorney.
`
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
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