To:
`
`Subject:
`
`Sent:
`
`Sent As:
`
`Attachments:
`
`HMS Designs (privacy@trademarkengine.com)
`
`U.S. TRADEMARK APPLICATION NO. 88013416 - HOSTILE GENTLEMEN - N/A
`
`9/24/2018 11:13:44 AM
`
`ECOM101@USPTO.GOV
`
`Attachment - 1
`Attachment - 2
`Attachment - 3
`Attachment - 4
`
`UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)
`OFFICE ACTION (OFFICIAL LETTER) ABOUT APPLICANT’S TRADEMARK APPLICATION
`
`U.S. APPLICATION
`SERIAL NO.   88013416
`
`           
`
`MARK: HOSTILE
`GENTLEMEN
`
`CORRESPONDENT
`ADDRESS:
`  
`       HMS DESIGNS
`           HMS DESIGNS
`         3433 LITHIA
`PINECREST RD. / STE.314
`           VALRICO, FL 33596
`    
`   
`APPLICANT: HMS Designs
`
`    
`
`*88013416*
`
`CLICK HERE TO RESPOND TO THIS
`LETTER:
`http://www.uspto.gov/trademarks/teas/response_forms.jsp
`
`VIEW YOUR APPLICATION FILE
`
`CORRESPONDENT’S
`REFERENCE/DOCKET
`
`NO:       
`
`  N/A
`CORRESPONDENT E-
`
`   
`
`MAIL ADDRESS:       
`
`privacy@trademarkengine.com
`
`OFFICE ACTION
`
`STRICT DEADLINE TO RESPOND TO THIS LETTER
`TO AVOID ABANDONMENT OF APPLICANT’S TRADEMARK APPLICATION, THE USPTO MUST RECEIVE APPLICANT’S
`COMPLETE RESPONSE TO THIS LETTER WITHIN 6 MONTHS OF THE ISSUE/MAILING DATE BELOW.   A RESPONSE
`TRANSMITTED THROUGH THE TRADEMARK ELECTRONIC APPLICATION SYSTEM (TEAS) MUST BE RECEIVED BEFORE
`MIDNIGHT EASTERN TIME OF THE LAST DAY OF THE RESPONSE PERIOD.
`
`ISSUE/MAILING DATE: 9/24/2018
`
`The referenced application has been reviewed by the assigned trademark examining attorney.  Applicant must respond timely and completely to
`the issue(s) below.  15 U.S.C. §1062(b); 37 C.F.R. §§2.62(a), 2.65(a); TMEP §§711, 718.03.
`
`SECTION 2(d) REFUSAL – LIKELIHOOD OF CONFUSION
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`The examining attorney refuses registration under Trademark Act Section 2(d), 15 U.S.C. Section 1052(d), because the applicant's mark, when
`used on or in connection with the identified goods, so resembles the mark in U.S. Registration No. 4551460 as to be likely to cause confusion, to
`cause mistake, or to deceive.  TMEP section 1207.  See the enclosed abstract.
`
`The examining attorney must analyze each case in two steps to determine whether there is a likelihood of confusion.  First, the examining
`attorney must look at the marks themselves for similarities in appearance, sound, connotation and commercial impression.   In re E. I. DuPont de
`Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973).  Similarity in any one of these elements is sufficient to find a likelihood of
`confusion. In re Mack, 197 USPQ 755 (TTAB 1977).
`
`The applicant's mark is “HOSTILE GENTLEMEN”.   The registrant's mark is “HOSTILE”.   The marks are nearly identical in appearance and
`commercial impression.
`
`Incorporating the entirety of one mark within another does not obviate the similarity between the compared marks, as in the present case, nor
`does it overcome a likelihood of confusion under Section 2(d).  See Wella Corp. v. Cal. Concept Corp., 558 F.2d 1019, 1022, 194 USPQ 419,
`422 (C.C.P.A. 1977) (finding CALIFORNIA CONCEPT and surfer design and CONCEPT confusingly similar); Coca-Cola Bottling Co. v. Jos.
`E. Seagram & Sons, Inc., 526 F.2d 556, 557, 188 USPQ 105, 106 (C.C.P.A. 1975) (finding BENGAL LANCER and design and BENGAL
`confusingly similar); In re Integrated Embedded, 120 USPQ2d 1504, 1513 (TTAB 2016) (finding BARR GROUP and BARR confusingly
`similar); In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1090 (TTAB 2016) (finding JAWS DEVOUR YOUR HUNGER and JAWS confusingly
`similar); TMEP §1207.01(b)(iii).  In the present case, the marks are identical in part.
`
`Second, the examining attorney must compare the goods or services to determine if they are related or if the activities surrounding their
`marketing are such that confusion as to origin is likely.  In re August Storck KG, 218 USPQ 823 (TTAB 1983); In re International Telephone and
`Telegraph Corp., 197 USPQ 910 (TTAB 1978); Guardian Products Co., v. Scott Paper Co., 200 USPQ 738 (TTAB 1978).
`
`The applicant's goods are "Gloves; Hats; Jackets; Shirts; Shoes; Sweatshirts" in International Class 25.  The registrant's goods are "Baseball caps;
`Jackets; Sweatshirts; T-shirts" in International Class 25.  The goods are closely related, namely both involve clothing.
`
`Neither the application nor the registration(s) contains any limitations regarding trade channels for the goods and therefore it is assumed that
`registrant’s and applicant’s goods are sold everywhere that is normal for such items, i.e., clothing and department stores.
`  Thus, it can also be
`assumed that the same classes of purchasers shop for these items and that consumers are accustomed to seeing them sold under the same or
`similar marks.  See Kangol Ltd. v. KangaROOS U.S.A., Inc., 974 F.2d 161, 23 USPQ2d 1945 (Fed. Cir. 1992); In re Smith & Mehaffey, 31
`USPQ2d 1531 (TTAB 1994); TMEP §1207.01(a)(iii).
`
`Decisions regarding likelihood of confusion in the clothing field have found many different types of apparel to be related goods.  Cambridge
`Rubber Co. v. Cluett, Peabody & Co., 286 F.2d 623, 624, 128 USPQ 549, 550 (C.C.P.A. 1961) (women’s boots related to men’s and boys’
`underwear); Jockey Int’l, Inc. v. Mallory & Church Corp. , 25 USPQ2d 1233, 1236 (TTAB 1992) (underwear related to neckties); In re Melville
`Corp., 18 USPQ2d 1386, 1388 (TTAB 1991) (women’s pants, blouses, shorts and jackets related to women’s shoes); In re Pix of Am., Inc., 225
`USPQ 691, 691-92 (TTAB 1985) (women’s shoes related to outer shirts); In re Mercedes Slacks, Ltd., 213 USPQ 397, 398-99 (TTAB 1982)
`(hosiery related to trousers); In re Cook United, Inc., 185 USPQ 444, 445 (TTAB 1975) (men’s suits, coats, and trousers related to ladies’
`pantyhose and hosiery); Esquire Sportswear Mfg. Co. v. Genesco Inc., 141 USPQ 400, 404 (TTAB 1964) (brassieres and girdles related to slacks
`for men and young men).
`
`Because the marks are nearly identical and the goods are closely related, the similarities among the marks and the goods are so great as to create a
`likelihood of confusion among consumers as to the source of the goods.  The examining attorney must resolve any doubt regarding a likelihood
`of confusion in favor of the prior registrant.  In re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025 (Fed. Cir., 1988).
`
`SECTIONS 1, 2 AND 45 REFUSAL – MERELY ORNAMENTAL
`
`Registration is refused because the applied-for mark as used on the specimen of record is merely a decorative or ornamental feature of
`applicant’s clothing and, thus, does not function as a trademark to indicate the source of applicant’s clothing and to identify and distinguish
`applicant’s clothing from others.   Trademark Act Sections 1, 2, and 45, 15 U.S.C. §§1051-1052, 1127; see In re Lululemon Athletica Can. Inc.,
`105 USPQ2d 1684, 1689 (TTAB 2013); In re Pro-Line Corp., 28 USPQ2d 1141, 1142 (TTAB 1993); TMEP §§904.07(b), 1202.03 et seq.
`
`When evaluating a mark that appears to be ornamental, the size, location, dominance, and significance of the alleged mark as applied to the goods
`are all relevant factors in determining the commercial impression of the applied-for mark.  See, e.g., In re Lululemon Athletica Can. Inc., 105
`USPQ2d at 1687 (quoting In re Right-On Co., 87 USPQ2d 1152, 1156 (TTAB 2008)); In re Dimitri’s Inc. , 9 USPQ2d 1666, 1667 (TTAB
`1988); TMEP §1202.03(a).
`
`With respect to clothing, consumers may recognize small designs or discrete wording as trademarks, rather than as merely ornamental features,
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`when located, for example, on the pocket or breast area of a shirt.  See TMEP §1202.03(a).  Consumers may not, however, perceive larger
`designs or slogans as trademarks when such matter is prominently displayed across the front of a t-shirt.  See In re Pro-Line Corp., 28 USPQ2d at
`1142 (holding BLACKER THE COLLEGE SWEETER THE KNOWLEDGE centered in large letters across most of the upper half of a shirt, to
`be a primarily ornamental slogan that was not likely to be perceived as a source indicator); In re Dimitri’s Inc. , 9 USPQ2d at 1667-68 (holding
`SUMO used in connection with stylized depictions of sumo wrestlers and displayed in large lettering across the top-center portion of t-shirts and
`caps, to be an ornamental feature of the goods that did not function as a trademark); TMEP §1202.03(a), (b), (f)(i), (f)(ii).
`
`In this case, the submitted specimen shows the applied-for mark, “HOSTILE GENTLEMEN”, located directly on the upper-center area of the
`front of the shirt, where ornamental elements often appear.  See TMEP §1202.03(a), (b).  Furthermore, the mark is displayed in a relatively large
`size on the clothing such that it dominates the overall appearance of the goods.  Lastly, the applied-for mark appears to be a slogan or design
`element that is merely decorative and has little or no particular source-identifying significance.
`
`Therefore, consumers would view the applied-for mark as a decorative or ornamental feature of the goods, rather than as a trademark to indicate
`the source of applicant’s goods and to distinguish them from others.
`
`In appropriate circumstances, applicant may overcome this refusal by satisfying one of the following options:
`
`(1)      
`
`(2)      
`
`(3)      
`
`Submit a different specimen (a verified “substitute” specimen ) that was in actual use in commerce at least as early as the filing
`date of the application (or prior to the filing of an amendment to allege use) and that shows proper trademark use for the identified
`goods in International Class 25.  Examples of acceptable specimens that show non-ornamental use on clothing include hang tags
`and labels used inside a garment.
`
`Amend to the Supplemental Register, which is a second trademark register for marks not yet eligible for registration on the
`Principal Register, but which may become capable over time of functioning as source indicators.
`
`Claim acquired distinctiveness under Trademark Act Section 2(f) by submitting evidence that the applied-for mark has become
`distinctive of applicant’s goods; that is, proof that applicant’s extensive use and promotion of the mark allowed consumers now
`directly to associate the mark with applicant as the source of the goods.
`
`(4)      
`
`Submit evidence that the applied-for mark is an indicator of secondary source; that is, proof that the mark is already recognized as
`
`a source indicator for other goods or services that applicant sells/offers.     
`
`(5)      
`
`Amend the filing basis to intent to use under Section 1(b).  This option will later necessitate additional fee(s) and filing
`requirements.
`
`For an overview of all response options referenced above and instructions on how to satisfy each option online using the Trademark Electronic
`Application System (TEAS) form, please go to http://www.uspto.gov/trademarks/law/ornamental.jsp.
`
`Although applicant’s mark has been refused registration, applicant may respond to the refusals by submitting evidence and arguments in support
`of registration.
`
`If applicant responds to the refusals, applicant must also respond to the requirements set forth below.
`
`DISCLAIMER REQUIRED
`
`The applicant must insert a disclaimer of “GENTLEMEN” in the application because the term is merely descriptive of the goods.   Trademark
`Act Section 6, 15 U.S.C. Section 1056; TMEP sections 1213 and 1213.09(a)(i).
`
`The term “GENTLEMEN” is defined as “used as a form of address for a group of men.” The American Heritage® Dictionary of the English
`Language, Fifth Edition ©2018 Houghton Mifflin Harcourt Publishing Company (copy attached).
`
`The term “GENTLEMEN” merely describe a characteristic of the applicant’s goods, namely, clothing made for men.
`
`Trademark Act Section 6(a), 15 U.S.C. Section 1056(a), states that the Commissioner may require the applicant to disclaim an unregistrable
`component of a mark.  Trademark Act Section 2(e), 15 U.S.C. Section 1052(e), bars the registration of a mark which is merely descriptive or
`deceptively misdescriptive, or primarily geographically descriptive of the goods. Therefore, the Commissioner may require the disclaimer of a
`portion of a mark which, when used in connection with the goods or services, is merely descriptive or deceptively misdescriptive, or primarily
`geographically descriptive.  If an applicant does not comply with a disclaimer requirement, the examining attorney may refuse registration of the
`entire mark.  TMEP section 1213.01(b).
`
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`  A
`
` disclaimer does not remove the disclaimed matter from the mark.  It is simply a statement that the applicant does not claim exclusive rights in
`the disclaimed wording or design apart from the mark as shown in the drawing.
`
`The following cases explain the disclaimer requirement more fully:  In re Kraft, Inc., 218 USPQ 571 (TTAB 1983); In re EBS Data Processing,
`Inc., 212 USPQ 964 (TTAB 1981); In re National Presto Industries, Inc., 197 USPQ 188 (TTAB 1977); In re Pendleton Tool Industries, Inc.,
`157 USPQ 114 (TTAB 1968).
`
`The computerized printing format for the Trademark Official Gazette requires a standard form for a disclaimer.   TMEP section 1213.09(a)(i).  A
`properly worded disclaimer should read as follows:
`
`            
`
`No claim is made to the exclusive right to use “GENTLEMEN” apart from the mark as shown.
`
`See In re Owatonna Tool Co., 231 USPQ 493 (Comm'r Pats. 1983).
`
`TRADEMARK ATTORNEY SUGGESTED
`
`Because of the legal technicalities and strict deadlines involved in the USPTO application process, applicant may wish to hire a private attorney
`specializing in trademark matters to represent applicant in this process and provide legal advice.  Although the undersigned trademark examining
`attorney is permitted to help an applicant understand the contents of an Office action as well as the application process in general, no USPTO
`
`attorney or staff is permitted to give an applicant legal advice or statements about an applicant’s legal rights.   TMEP §§705.02, 709.06.  
`
`For attorney referral information, applicant may consult the American Bar Association’s Consumers’ Guide to Legal Help ; an online directory
`of legal professionals, such as FindLaw®; or a local telephone directory.  The USPTO, however, may not assist an applicant in the selection of a
`private attorney.  37 C.F.R. §2.11.
`
`TEAS PLUS OR TEAS REDUCED FEE (TEAS RF) APPLICANTS – TO MAINTAIN LOWER FEE, ADDITIONAL
`REQUIREMENTS MUST BE MET, INCLUDING SUBMITTING DOCUMENTS ONLINE:  Applicants who filed their application online
`using the lower-fee TEAS Plus or TEAS RF application form must (1) file certain documents online using TEAS, including responses to Office
`actions (see TMEP §§819.02(b), 820.02(b) for a complete list of these documents); (2) maintain a valid e-mail correspondence address; and (3)
`agree to receive correspondence from the USPTO by e-mail throughout the prosecution of the application.  See 37 C.F.R. §§2.22(b), 2.23(b);
`TMEP §§819, 820.  TEAS Plus or TEAS RF applicants who do not meet these requirements must submit an additional processing fee of $125
`per class of goods and/or services.  37 C.F.R. §§2.6(a)(1)(v), 2.22(c), 2.23(c); TMEP §§819.04, 820.04.  However, in certain situations, TEAS
`Plus or TEAS RF applicants may respond to an Office action by authorizing an examiner’s amendment by telephone or e-mail without incurring
`
`this additional fee.   
`
`If applicant has questions regarding this Office action, please telephone or e-mail the assigned trademark examining attorney.  All relevant e-mail
`communications will be placed in the official application record; however, an e-mail communication will not be accepted as a response to this
`Office action and will not extend the deadline for filing a proper response.  See 37 C.F.R. §§2.62(c), 2.191; TMEP §§304.01-.02, 709.04-.05. 
`Further, although the trademark examining attorney may provide additional explanation pertaining to the refusal(s) and/or requirement(s) in this
`Office action, the trademark examining attorney may not provide legal advice or statements about applicant’s rights.   See TMEP §§705.02,
`709.06.
`
`/Alec Powers/
`Trademark Examining Attorney
`US Trademark Law Office 101
`Ph: 571-272-9309
`Fax: 571-273-9309
`alexander.powers@uspto.gov
`
`TO RESPOND TO THIS LETTER:   Go to http://www.uspto.gov/trademarks/teas/response_forms.jsp.   Please wait 48-72 hours from the
`issue/mailing date before using the Trademark Electronic Application System (TEAS), to allow for necessary system updates of the application. 
`For technical assistance with online forms, e-mail TEAS@uspto.gov.  For questions about the Office action itself, please contact the assigned
`trademark examining attorney.  E-mail communications will not be accepted as responses to Office actions; therefore, do not respond to
`this Office action by e-mail.
`
` 
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`

`

`All informal e-mail communications relevant to this application will be placed in the official application record.
`
`WHO MUST SIGN THE RESPONSE:  It must be personally signed by an individual applicant or someone with legal authority to bind an
`applicant (i.e., a corporate officer, a general partner, all joint applicants).  If an applicant is represented by an attorney, the attorney must sign the
`
`response.  
`
`PERIODICALLY CHECK THE STATUS OF THE APPLICATION:   To ensure that applicant does not miss crucial deadlines or official
`notices, check the status of the application every three to four months using the Trademark Status and Document Retrieval (TSDR) system at
`http://tsdr.uspto.gov/.   Please keep a copy of the TSDR status screen.   If the status shows no change for more than six months, contact the
`Trademark Assistance Center by e-mail at TrademarkAssistanceCenter@uspto.gov or call 1-800-786-9199.   For more information on checking
`status, see http://www.uspto.gov/trademarks/process/status/.
`
`TO UPDATE CORRESPONDENCE/E-MAIL ADDRESS:  Use the TEAS form at http://www.uspto.gov/trademarks/teas/correspondence.jsp.
`
` 
` 
`  
`

`

`Print: Sep 23, 2018
`
`86108501
`
`DESIGN MARK
`
`serial Number
`86108501
`
`Status
`REGISTERED
`
`Word Mark
`HOSTILE
`
`Standard Character Mark
`Yes
`
`Registration Number
`4551460
`
`Date Registered
`2014x06x1?
`
`T‘ype at Mark
`TRADEMARK
`
`Register
`PRINCIPAL
`
`Mark Drawing Code
`[4]
`STANDARD CHARACTER MARK
`
`Owner
`MKW ALLCY INC CCRPCRATICN CALIFORNIA 19525 E WALNUT DR city of
`industry CHLIFORNIA 917‘ 4 8
`
`GoodsfServiees
`
`G & S: Baseball caps;
`022 039.
`US
`IC 025.
`Class Status -- ACTIVE.
`Jackets: Sweatshirts: T-shirts. First Use: ZOlZXllHOl. First Use In
`Commerce: ZOlZ/Jll/JOZL .
`
`Filing Date
`2013H11H01
`
`Examining Attorney
`BUTLER, MIDGE
`
`

`

`HOSTILE
`
`

`

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`

`

`To:
`
`Subject:
`
`Sent:
`
`Sent As:
`
`Attachments:
`
`HMS Designs (privacy@trademarkengine.com)
`
`U.S. TRADEMARK APPLICATION NO. 88013416 - HOSTILE GENTLEMEN - N/A
`
`9/24/2018 11:13:45 AM
`
`ECOM101@USPTO.GOV
`
`UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)
`
`IMPORTANT NOTICE REGARDING YOUR
`U.S. TRADEMARK APPLICATION
`
`USPTO OFFICE ACTION (OFFICIAL LETTER) HAS ISSUED
`ON 9/24/2018 FOR U.S. APPLICATION SERIAL NO. 88013416
`
`Your trademark application has been reviewed.  The trademark examining attorney assigned by the USPTO to your application has written an
`official letter to which you must respond.  Please follow these steps:
`
`(1)  READ THE LETTER by clicking on this link or going to http://tsdr.uspto.gov/, entering your U.S. application serial number, and clicking
`on “Documents.”
`
`The Office action may not be immediately viewable, to allow for necessary system updates of the application, but will be available within 24
`
`hours of this e-mail notification.  
`
`(2)  RESPOND WITHIN 6 MONTHS (or sooner if specified in the Office action), calculated from 9/24/2018, using the Trademark Electronic
`Application System (TEAS) response form located at http://www.uspto.gov/trademarks/teas/response_forms.jsp.  A response transmitted through
`TEAS must be received before midnight Eastern Time of the last day of the response period.
`
`Do NOT hit “Reply” to this e-mail notification, or otherwise e-mail your response because the USPTO does NOT accept e-mails as
`
`responses to Office actions.  
`
`(3)  QUESTIONS about the contents of the Office action itself should be directed to the trademark examining attorney who reviewed your
`
`application, identified below.  
`
`/Alec Powers/
`Trademark Examining Attorney
`US Trademark Law Office 101
`Ph: 571-272-9309
`Fax: 571-273-9309
`alexander.powers@uspto.gov
`
`WARNING
`
`Failure to file the required response by the applicable response deadline will result in the ABANDONMENT of your application.  For
`
`more information regarding abandonment, see http://www.uspto.gov/trademarks/basics/abandon.jsp.  
`
`PRIVATE COMPANY SOLICITATIONS REGARDING YOUR APPLICATION:  Private companies not associated with the USPTO are
`using information provided in trademark applications to mail or e-mail trademark-related solicitations.  These companies often use names that
`closely resemble the USPTO and their solicitations may look like an official government document.  Many solicitations require that you pay
`
`“fees.”   
`
` 
`  
` 
` 
` 
` 
` 
` 
` 
`

`

`Please carefully review all correspondence you receive regarding this application to make sure that you are responding to an official document
`from the USPTO rather than a private company solicitation.  All official USPTO correspondence will be mailed only from the “United States
`Patent and Trademark Office” in Alexandria, VA; or sent by e-mail from the domain “@uspto.gov.”   For more information on how to handle
`private company solicitations, see http://www.uspto.gov/trademarks/solicitation_warnings.jsp.
`
`  
`