To:
`
`Subject:
`
`Sent:
`Sent As:
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`Ryan D. Artis(dockets@riversidelaw.com)
`U.S. Trademark Application Serial No. 90281625 - NEURO PLAYGROUND -
`206095608978
`September 02, 2022 12:07:35 PM EDT
`tmng.notices@uspto.gov
`
`Attachments
`
`United States Patent and Trademark Office (USPTO)
`Office Action (Official Letter) About Applicant’s Trademark Application
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`
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`U.S. Application Serial No.  90281625
`
`Mark:   NEURO PLAYGROUND
`
`Correspondence Address:  
`Ryan D. Artis
`RIVERSIDE LAW LLP
`175 Strafford Ave., Suite 100
`WAYNE PA 19087 UNITED STATES
`
`Applicant:   The Family Hope Center, LLC
`
`Reference/Docket No.  206095608978
`
`Correspondence Email Address:   dockets@riversidelaw.com
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`
`
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`
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`FINAL OFFICE ACTION
`
`The USPTO must receive applicant’s response to this letter within six months of the issue date
`below or the application will be abandoned.  Respond using the Trademark Electronic Application
`System (TEAS) and/or Electronic System for Trademark Trials and Appeals (ESTTA).  A link to the
`appropriate TEAS response form and/or to ESTTA for an appeal appears at the end of this Office
`action.  
`
`Issue date:   September 02, 2022
`
`INTRODUCTION
`
`This Office action is in response to applicant’s communication filed on August 5, 2022.
`
`
`

`

`In a previous Office action dated February 6, 2022, the trademark examining attorney refused
`registration of the applied-for mark based on the following: Specimen does not show Applied-for Mark
`Associated with Services Identified in the Statement of Use.
`
`Based on applicant’s response, the trademark examining attorney maintains and now makes FINAL
`the refusal below. See 37 C.F.R. §2.63(b); TMEP §714.04.
`
`SPECIMEN REFUSAL: SPECIMEN DOES NOT SHOW APPLIED-FOR MARK
`ASSOCIATED WITH SERVICES IDENTIFIED IN THE STATEMENT OF USE
`
`In the first Office action, registration was refused because the specimen did not show the applied-for
`mark associated with the identified services. In its response, the applicant submitted arguments and
`evidence against the refusal. The examining attorney reviewed the applicant's response and finds the
`arguments and unpersuasive, and thus the refusal is maintained and made final as follows.  See 37
`C.F.R. §2.63(b); TMEP §§714.04.  904, 904.07(a).
`
`Registration is refused because the specimen does not show the applied-for mark as actually used in
`commerce in connection with any of the services specified in International Class 44 in the statement of
`use.  Trademark Act Sections 1 and 45, 15 U.S.C. §§1051, 1127; 37 C.F.R. §§2.34(a)(1)(iv), 2.56(a); 
`In
`re Keep A Breast Found., 123 USPQ2d 1869, 1876-79 (TTAB 2017); TMEP §§904, 904.07(a),
`1301.04(d), (g)(i).  An application based on Trademark Act Section 1(a) must include a specimen
`showing the applied-for mark as actually used in commerce for each international class of services
`identified in the statement of use.  15 U.S.C. §1051(a)(1); 37 C.F.R. §§2.34(a)(1)(iv), 2.56(a); TMEP
`§§904, 904.07(a);  see  In re Gulf Coast Nutritionals, Inc., 106 USPQ2d 1243, 1247 (TTAB 2013).
`
`Specifically, the identification of services in the statement of use is as follows (emphasis added):
`“Medical services, namely, providing virtual neuro-development strategies for neuro typical children
`and children diagnosed as having special needs;  Health care consulting in the field of providing
`virtual neuro-development strategies for neuro typical children and children diagnosed as having
`special needs;  Health care services, namely, providing virtual neuro-development strategies for neuro
`typical children and children diagnosed as having special needs;  Health care consulting in the field of
`neuro-development strategies for children.”
`
`Additionally, the applicant describes the specimen as “services brochure and neuro-development
`workbook.”
`
`However, the brochure and workbook only reference educational services provided by the applicant,
`e.g. “Course Content,” “Lesson 1”, “This specialized training program…,” etc.
`
`In this case, the specimen shows the applied-for mark “NEURO PLAYGROUND” associated with
`Class 41 educational courses and training rather than the provision of Class 44 medical or health care
`services, even though the applicant’s educational courses and training services are in the medical and
`health care fields.
`
`Therefore, the specimen does not show the applied-for mark as actually used in commerce in
`connection with any of the services specified in International Class 44 in the statement of use.
`
`APPLICANT'S ARGUMENTS & EVIDENCE ARE NOT PERSUASIVE 
`
`
`

`

`In its August 5, 2022 response, the applicant argues that the brochure specimen and the workbook
`specimen show use of the applicant's mark with medical and healthcare services because the specimen
`shows that the applicant provides, in brief, "neuro-developement strategies," and thus is acceptable.
`Applicant further explains that these strategies are the "standard in the medical field for treating neuro
`typical children and children diagnosed as having special needs," and thus the specimen is acceptable.
`Respectfully, the examining attorney finds the arguments and evidence unpersuasive for the reasons set
`forth below. 
`
`Specifically, as the Nice Classification explains "Class 44 includes mainly medical care..." while "Class
`41 includes mainly services consisting of all formal of education or training..." See Nice Agreement
`Current Edition/Version. In this case, medical services, including healthcare services, are rendered
`primarily for the prevention, treatment or diagnosis of a condition or disease while educational services
`are rendered primarily to train, instruct or otherwise impart knowledge in a particular field. Id. 
`
`In this case, applicant's "neuro-development strategies" are identified as "medical services" and "health
`care" services in Class 44 in the application, which means that the applicant's services are primarily for
`the prevention, treatment or diagnosis of a condition or disease rather than to train, instruct or otherwise
`impart knowledge. 
`
`While the applicant argues that its neuro-development strategies are used "for treating neuro typical
`children and children diagnosed as having special needs," the specimen in the statement of use
`submitted does not show this. That is, the specimen of record only references the educational services
`provided by the applicant. 
`
`The examining attorney does not dispute that the applicant's services are used for the treatment or
`diagnoses of particular conditions or diseases, but the specimen must make a direct association between
`the applied-for mark and the medical and health care services.  A specimen must show the mark used in
`a way that would create in the minds of potential consumers a sufficient nexus or direct association
`between the mark and the services being offered. See 37 C.F.R. §2.56(b)(2); In re Universal Oil Prods.
`Co., 476 F.2d 653, 655, 177 USPQ2d 456, 457 (C.C.P.A. 1973); TMEP §1301.04(f)(ii).
`
`With no reference to the medical services or health care services provided under the applied-for mark
`(apart from the applicant's educational services), the specimen is not acceptable. 
`
`Accordingly, the applicant's arguments and evidence are not persuasive.  
`
`CONCLUSION
`
`In sum, the specimen does not show the applied-for mark as actually used in commerce in connection
`with any of the services specified in International Class 44 in the statement of use, and registration is
`properly refused on the Principal Register under Sections 1 and 45 of the Trademark Act. 
`
`EXAMPLES OF SPECIMENS
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`Specimens for services must show a direct association between the mark and the services and
`include:  (1) copies of advertising and marketing material, (2) a photograph of business signage or
`billboards, or (3) materials showing the mark in the sale, rendering, or advertising of the
`services.   See 37 C.F.R. §2.56(b)(2), (c); TMEP §1301.04(a), (h)(iv)(C). 
`
`
`

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`Any webpage printout or screenshot submitted as a specimen must include the webpage’s URL and the
`date it was accessed or printed on the specimen itself, within the TEAS form that submits the specimen,
`or in a verified statement under 37 C.F.R. §2.20 or 28 U.S.C. §1746 in a later-filed response.   See 37
`C.F.R. §2.56(c); TMEP §§904.03(i), 1301.04(a).
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`RESPONSE OPTION
`
`Applicant may respond to this refusal by submitting, for each applicable international class, a different
`specimen (a verified  “substitute” specimen) that (a) was in actual use in commerce prior to the
`expiration of the deadline for filing the statement of use and (b) shows the mark in actual use in
`commerce for the services identified in the statement of use.  A “verified substitute specimen” is a
`specimen that is accompanied by the following statement made in a signed affidavit or supported by a
`declaration under 37 C.F.R. §2.20:  “The substitute (or new, or originally submitted, if appropriate)
`specimen(s) was/were in use in commerce prior to expiration of the filing deadline for filing a
`statement of use.”  The substitute specimen cannot be accepted without this statement.
`
`Applicant may not withdraw the statement of use.   See 37 C.F.R. §2.88(f); TMEP §1109.17.
`
`For an overview of this response option and instructions on how to submit a different specimen using
`the online Trademark Electronic Application System (TEAS) form, see the  Specimen webpage.
`
`How to respond.   Click to file a response to this final Office action and/or appeal it to the
`Trademark Trial and Appeal Board (TTAB).
`
`
`
`/Deborah Meiners/
`Deborah Meiners
`(571) 272-8993
`deborah.meiners@uspto.gov
`
`
`
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`RESPONSE GUIDANCE
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`•
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`Missing the response deadline to this letter will cause the application to abandon.  A
`response or notice of appeal must be received by the USPTO before midnight Eastern Time of
`the last day of the response period.  TEAS and ESTTA maintenance or unforeseen circumstances
`could affect an applicant’s ability to timely respond.
`
`Responses signed by an unauthorized party are not accepted and can cause the application to
`abandon.  If applicant does not have an attorney, the response must be signed by the individual
`applicant, all joint applicants, or someone with legal authority to bind a juristic applicant.  If
`applicant has an attorney, the response must be signed by the attorney.
`
`If needed, find contact information for the supervisor of the office or unit listed in the
`signature block.
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`

`

`United States Patent and Trademark Office (USPTO)
`
`USPTO OFFICIAL NOTICE
`
`Office Action (Official Letter) has issued
`on September 02, 2022 for
`U.S. Trademark Application Serial No.  90281625
`
`A USPTO examining attorney has reviewed your trademark application and issued an Office
`action.  You must respond to this Office action in order to avoid your application
`abandoning.  Follow the steps below.
`
`(1)   Read the Office action. This email is NOT the Office action.
`
`(2)  Respond to the Office action by the deadline using the Trademark Electronic Application
`System (TEAS). Your response must be received by the USPTO on or before 11:59 p.m.
`Eastern Time of the last day of the response period. Otherwise, your application will be
`abandoned. See the Office action itself regarding how to respond.
`
`(3)  Direct general questions about using USPTO electronic forms, the USPTO website, the
`application process, the status of your application, and whether there are outstanding deadlines
`to the Trademark Assistance Center (TAC).
`
`After reading the Office action, address any question(s) regarding the specific content to the
`USPTO examining attorney identified in the Office action.
`
`GENERAL GUIDANCE
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`•
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`•
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`•
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`Check the status of your application periodically in the Trademark Status &
`Document Retrieval (TSDR) database to avoid missing critical deadlines.
`
`Update your correspondence email address to ensure you receive important USPTO
`notices about your application.
`
`Beware of trademark-related scams . Protect yourself from people and companies that
`may try to take financial advantage of you. Private companies may call you and pretend
`to be the USPTO or may send you communications that resemble official USPTO
`documents to trick you. We will never request your credit card number or social security
`number over the phone. And all official USPTO correspondence will only be emailed
`from the domain “@uspto.gov.” Verify the correspondence originated from us by using
`your Serial Number in our database, TSDR, to confirm that it appears under the
`“Documents” tab, or contact the Trademark Assistance Center. 
`
`

`

`•
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`Hiring a U.S.-licensed attorney . If you do not have an attorney and are not required to
`have one under the trademark rules, we encourage you to hire a U.S.-licensed attorney
`specializing in trademark law to help guide you through the registration process. The
`USPTO examining attorney is not your attorney and cannot give you legal advice, but
`rather works for and represents the USPTO in trademark matters.
`
` 
`