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dear sir
I HAVE FILED PATENT ON DEC 2006
UTILITY PATENT-200600000432
STILL I HAVE NOT RECIEVED CONFIRMATION LETTER
PLEASE HELP
PRATAP PURANIK RKCRF RAMKRUSHNA WALMIKI NAGAR BARSHI RD LATYR,MH,INDIA 413531
PH091-9890915875
The last bullet point states: • Webpage is not acceptable for goods given the presence of third party goods and marks therefor (e.g., “Cuisinart” and “Polo by Ralph Lauren”). The reason the webpage is not acceptable for goods is not because third party marks appear on the page, but because Macy's is not, in fact, the source of the goods shown. This should be revised to something like "webpage is not acceptable for goods ...more »
The last bullet point states:
• Webpage is not acceptable for goods given the presence of third party goods and marks therefor (e.g., “Cuisinart” and “Polo by Ralph Lauren”).
The reason the webpage is not acceptable for goods is not because third party marks appear on the page, but because Macy's is not, in fact, the source of the goods shown. This should be revised to something like "webpage is not acceptable for goods because it shows the mark used for retail store services featuring the goods of others."
Thank you for the opportunity to comment.
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The final bullet point reads: • If the proposed mark were “T.Markey Your Clothing Emporium” (as it appears in the upper left corner), the webpage would not be acceptable for goods because of the proximity and association of the other marks with the goods (i.e., “Teeyak” and “Keeping you cozy.”). Why does the "proximity and association of other marks with the goods" preclude the company's name in the upper left-hand corner ...more »
The final bullet point reads:
• If the proposed mark were “T.Markey Your Clothing Emporium” (as it appears in the upper left corner), the webpage would not be acceptable for goods because of the proximity and association of the other marks with the goods (i.e., “Teeyak” and “Keeping you cozy.”).
Why does the "proximity and association of other marks with the goods" preclude the company's name in the upper left-hand corner of website from also operating as a source-indicator? The actual labels/hang-tags on the products could well bear all these marks (many hangtags do bear the manufacturer name, the product name, and a tagline, as here) and all are accepted as serving a source-indicating function. And if the closer mark and tagline were not included, then the website display would be accepted as an adequate specimen (per one of the other examples given in this Appendix). In my opinion, the last bullet point should be removed.
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Hitachi appreciates the opportunity to provide comments on the draft Examination Guide on Webpage specimens. In comparison to specimen requirements in most countries around the world, the USPTO specimen criteria are very strict. Many companies offer products and services not only to the general public but also to industrial. Therefore, it would be helpful to include additional information in Examination Guide taking ...more »
Hitachi appreciates the opportunity to provide comments on the draft Examination Guide on Webpage specimens. In comparison to specimen requirements in most countries around the world, the USPTO specimen criteria are very strict. Many companies offer products and services not only to the general public but also to industrial. Therefore, it would be helpful to include additional information in Examination Guide taking this fact into consideration.
The draft guideline indicates that “Where to buy” buttons or contact information without a means of ordering the goods are unacceptable. We believe that “Where to buy” links should be accepted regardless of whether there is a means to order the products or services. In fact, it is not common for companies to display a means to order the products when marketing products available for customization. It is our experience that consumers prefer to talk to a sales person to discuss their needs before placing an order especially if the products are expensive. Any means of contacting a sales team should be acceptable not only a telephone number as specified on page 6 of the draft.
In addition, companies often rely on local distributors to sell in different territories. Companies often list distributors or resellers on their webpage to help direct consumers to authorized channels. Therefore, contacting local distributors from an e-mail address, phone number or online inquiry form through the “Where to Buy” or “Contact Info” link is a means of ordering the product and actually a common industry practice. Consumer can easily order products when corresponding with a local distributor even though the products are not directly purchased on the website. Again, we believe in this day and age any means (i.e., telephone, e-mail, online inquiry form) of contacting a company or its authorized sales channels should be sufficient.
The draft guideline also indicates that a telephone number or e-mail address may not be adequate if it appears as applicant’s corporate contact information. Many companies display general corporate phone numbers or e-mail addresses for the consumer’s convenience. A main contact number or e-mail address is a quick way to contact the company and be directed to the correct department. There are many third parties which hold themselves out to be affiliated with a company. By contacting a company’s general phone number or e-mail address, the consumer is assured they will be directed appropriately instead of unauthorized party. It is easier for customers to dial a main line or send an e-mail to a general e-mail address where they can subsequently be directed to where they want to go. Therefore, any means of contact (e.g., phone number, e-mail address) should be sufficient.
Finally, as followed by most countries, advertising materials should be considered trademark use for goods and not just services. Advertising materials are not just offers to sell products but are similar to website displays which provide a means to place an order. Advertising materials are often presented with contact information which would allow consumers to contact a seller to place an order. At the very least, we believe the option to submit multiple documents such as catalogs, webpages and marketing collateral should be allowed to demonstrate as a whole “use of the mark in commerce” on goods. The current criteria for specimen of use creates a paradox that use of a mark on advertising materials, such as product catalogs would not be an acceptable specimen even though such use can constitute trademark infringement.
We think it would be helpful to include additional information to the specimen guidelines especially concerning acceptable specimens from applicants that market to industrial consumers.
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These comments pertain to section 2.b.iv. “Presence of Other Marks” in the draft Examination Guide on website displays. I appreciate that it is difficult to definitively identify factors that do, or do not, weigh for or against whether a particular website display qualifies as an acceptable specimen. It requires a nuanced analysis. However, I respectfully submit that proposed Section 2.b.iv is not helpful to the analysis ...more »
These comments pertain to section 2.b.iv. “Presence of Other Marks” in the draft Examination Guide on website displays.
I appreciate that it is difficult to definitively identify factors that do, or do not, weigh for or against whether a particular website display qualifies as an acceptable specimen. It requires a nuanced analysis. However, I respectfully submit that proposed Section 2.b.iv is not helpful to the analysis and should be deleted. It is misleading because it treats word marks as the only trademarks that may be encountered on a website display, and ignores the fact that designs, logos and slogans appear on such specimens as well. It overstates the case in opining that “[a]ssociation is more likely when the applied-for mark is physically near the goods and no other marks appear to be used in connection with the goods, see example 3 in Appendix (LACOSTE)” and “[association] becomes less likely if other marks are used in connection with the goods and seem to be trademarks for those goods.” That this contention is not the case is amply illustrated by the very Example 3 cited in this section. Example 3 shows the LACOSTE word mark, but immediately above that word mark is the LACOSTE Alligator logo, which is also a trademark. Thus, this example shows a case in which two trademarks are used in close association with the goods, yet this does not undermine the ability of either to function as a trademark for these goods.
It is not just cases in which the word mark is accompanied by a logo that more than one mark can be used for the goods in a source-indicating manner. The website display specimen accepted by the TTAB in In re Dell displayed numerous word marks that were used on or in connection with the product.
Rather than “distracting” the consumer, as suggested in the first sentence of this section 2.b.iv, the use of more than one mark may instead reinforce the consumers’ association of the mark with the goods. Consumers are very accustomed to associating a trademark with a product even if other trademark(s) are also used for the goods. McDonald’s meals are packaged in bags and boxes that bear the McDONALD’S mark, the Golden Arches logo, and some of them also bear the HAPPY MEAL mark. Nike shoes carry the NIKE mark, the Swoosh logo, and some of those also bear the LUNARLON mark to identify a feature of the goods, or are displayed with the NikeID mark to identify the product as one that may be customized. In sum, the presence of other trademarks on the specimen may sometimes be relevant in evaluating whether the applied-for mark is being used to identify the source of the goods, but I disagree that a general rule about this exists in the way suggested by Section 2.b.iv.
Thank you for the opportunity to submit comments.
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