IC 35 Letter of Protest update:
My Dog Mom Letter of Protest was dismissed in part and denied in part:
1) a “failure-to-function — widely used message” refusal was already issued, so my protest on that basis is moot (irrelevant);
2) my “premature claim of use in commerce” objection is denied — a third-party challenge like this is “more appropriate for an inter partes proceeding where the evidence regarding such an allegation may be fully developed by both parties. Such issues require investigation and production of evidence that are beyond the scope of authority of an examining attorney during [initial examination].”
Interestingly, the examining attorney also refused this one based on descriptiveness, as it describes the intended user. Very cool, since applicant’s website features goods that don’t use the term ornamentally — the evidence of descriptiveness came from other stores and products.
I’ll include this info in my upcoming training — still setting up infrastructure on the website in between stormy weather here and other duties.
My attempts to raise a descriptiveness issue in other previously-filed LOPs have all been denied, so I’m extra thankful for the excellent insights by the examining attorney here: https://tsdr.uspto.gov/documentviewer?caseId=sn88287036&docId=OOA20190405144749#docIndex=0&page=1