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To: CPC Properties, Inc. (pecsenye@blankrome.com)

Subject: U.S. TRADEMARK APPLICATION NO. 77751423 - CRAB FRIES -

129716-00100

Sent: 9/2/2009 8:02:57 PM

Sent As: ECOM113@USPTO.GOV

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UNITED STATES PATENT AND TRADEMARK OFFICE

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SERIAL NO: 77/751423

MARK: CRAB FRIES

*77751423* CORRESPONDENT ADDRESS:

TIMOTHY D. PECSENYE

BLANK ROME LLP

1 LOGAN SQ FL 9

PHILADELPHIA, PA 19103-6998

RESPOND TO THIS ACTION:

http://www.uspto.gov/teas/eTEASpageD.htm

GENERAL TRADEMARK INFORMATION:

http://www.uspto.gov/main/trademarks.htm

APPLICANT: CPC Properties, Inc.

CORRESPONDENTS REFERENCE/DOCKET

NO:

129716-00100

CORRESPONDENT E-MAIL ADDRESS:

pecsenye@blankrome.com

OFFICE ACTION

TO AVOID ABANDONMENT, THE OFFICE MUST RECEIVE A PROPER RESPONSE TO THIS

OFFICE ACTION WITHIN 6 MONTHS OF THE ISSUE/MAILING DATE.

ISSUE/MAILING DATE: 9/2/2009

The assigned trademark examining attorney has reviewed the referenced application and has determined

the following:

Search

The Office records have been searched and no similar registered or pending mark has been found that

would bar registration under Trademark Act Section 2(d), 15 U.S.C. 1052(d). TMEP 704.02. In order

to pursue registration, however, the applicant must respond to the following requirements.

Requirement for Clarification as to Inconsistencies Between the Drawing and Specimen

The applicant has submitted three documents as specimens, the first appears to be an informational web

site advertising the applicants restaurant services, the second appears to be an advertising flyer for theapplicants restaurant services and the third is a menu. The only acceptable specimen of record is the

menu. The first two specimens are not acceptable because they consist of advertising material for goods.

Trademark Act Section 45 requires use on the goods or their containers or the displays associated

therewith or on the tags or labels affixed thereto. 15 U.S.C. 1127; see 37 C.F.R. 2.56(b)(1); TMEP

904.04(b), (c).

Material that functions merely to tell prospective purchasers about the goods, or to promote the sale of the

goods, is not acceptable to show trademark use. TMEP 904.04(b). Invoices, business cards,

announcements, rice lists, listin s in trade directories, order forms, bills of ladin , leaflets, brochures,

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advertising circulars and other printed advertising material, while normally acceptable for showing use in

connection with services, generally are not acceptable specimens for showing trademark use in connection

with goods. See In re MediaShare Corp., 43 USPQ2d 1304, 1307 (TTAB 1997);In re Schiapparelli

Searle, 26 USPQ2d 1520, 1522 (TTAB 1993); TMEP 904.04(b), (c).

The mark on the only acceptable specimen of record disagrees with the mark on the drawing. In this case,

the specimen displays the mark as CRABFRIES; and thedrawing shows the mark as CRAB FRIES.

An application based on Trademark Act Section 1(a) must include a specimen showing the applied-for

mark in use in commerce for each class of goods and/or services. Trademark Act Sections 1 and 45, 15

U.S.C. 1051, 1127; 37 C.F.R. 2.34(a)(1)(iv), 2.56(a); TMEP 904, 904.07(a). The mark on the

drawing must be a substantially exact representation of the mark on the specimen. 37 C.F.R. 2.51(a);

TMEP 807.12(a); see 37 C.F.R. 2.72(a)(1). In addition, the drawing of the mark can be amended only

if the amendment does not materially alter the mark as originally filed. 37 C.F.R. 2.72(a)(2); TMEP

807.12(a), 807.14 et seq.

Therefore, applicant must submit one of the following:

(1) A new drawing of the mark that agrees with the mark on the specimen but does not materially

alter the original mark. See 37 C.F.R. 2.72(a)(2); TMEP 807.12(a), 807.14 et seq. Amending

the drawing to agree with the specimen would not be considered a material alteration of the mark

in this case.; or

(2) A substitute specimen showing use in commerce of the mark on the drawing, and the

following statement, verified with an affidavit or signed declaration under 37 C.F.R. 2.20, 2.33:

The substitute specimen was in use in commerce at least as early as the filing date of the

application. See 37 C.F.R. 2.59(a); TMEP 807.12(a), 904.05. If submitting a specimen

requires an amendment to the dates of use, applicant must also verify the amended dates. 37

C.F.R. 2.71(c); TMEP 904.05.

If applicant cannot satisfy one of the above requirements, applicant may amend the application from a use

in commerce basis under Trademark Act Section 1(a) to an intent to use basis under Section 1(b), for

which no specimen is required. See TMEP 806.03(c). However, if applicant amends the basis to Section

1(b), registration will not be granted until applicant later amends the application back to use in commerce

by filing an acceptable allegation of use with a proper specimen. See 15 U.S.C. 1051(c)-(d); 37 C.F.R.

2.76, 2.88; TMEP 1103.

To amend to Section 1(b), applicant must submit the following statement, verified with an affidavit or

signed declaration under 37 C.F.R. 2.20, 2.33: Applicant has had a bona fide intention to use the

mark in commerce on or in connection with the goods or services listed in the application as of the

filing date of the application. 37 C.F.R. 2.34(a)(2); TMEP 806.01(b); see 15 U.S.C. 1051(b); 37

C.F.R. 2.35(b)(1).

Declaration Required for Amendment to Intent to Use Basis

As stated above, if the applicant cannot satisfy the specimen requirement for a Use in Commerce filing

basis under Section 1(a), it may choose to amend to an Intent to Use filing basis under Section 1(b). If so,

the applicant must also submit the following declaration:

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The applicant has had a bona fide intention to use the mark in commerce on or in connection with the

goods or services listed in the application as of the filing date of the application. The undersigned,

being hereby warned that willful false statements and the like so made are punishable by fine or

imprisonment, or both, under 18 U.S.C. 1001, and that such willful false statements and the like may

jeopardize the validity of the application or document or any resulting registration, declares that the

facts set forth in the application are true; all statements made of his/her own knowledge are true; and

all statements made on information and belief are believed to be true.

_____________________________

(Signature)

_____________________________

(Print or Type Name and Position)

_____________________________

(Date)

Pending receipt of a proper response, registration is refused because the specimen does not show the

applied-for mark in use in commerce as a trademark and/or service mark. Trademark Act Sections 1 and

45, 15 U.S.C. 1051, 1127; 37 C.F.R. 2.34(a)(1)(iv), 2.56(a); TMEP 904, 904.07(a).

Requirement for the Submission of a Disclaimer Statement

The applicant must insert a disclaimer of FRIES in the application because it is descriptive of the type of

goods that the applicant produces. See 15 U.S.C. 1056(a); TMEP 1213, 1213.03(a). The following

cases further explain the disclaimer requirement:Dena Corp. v. Belvedere Intl Inc ., 950 F.2d 1555, 21

USPQ2d 1047 (Fed. Cir. 1991);In re Brown-Forman Corp., 81 USPQ2d 1284 (TTAB 2006);In re Kraft,

Inc., 218 USPQ 571 (TTAB 1983).

Attached are pages from the Internet website CredoReference.com which contains online versions of the

American Heritage, Chambers 21 st Century, Collins and Penguin English Dictionaries that define the

term FRIES to mean long thin strips of potatoes deep fried in oil. When used in the context of the

applicants recited processed potatoes goods, the term FRIES is merely descriptive of the form of the

potatoes, namely, that the applicants processed potatoes are cut into strips to be fried in oil or are potato

FRIES.

Attached are copies of printouts from the USPTO X-Search Database, which show third-party

registrations of marks used in connection with the same or similar services as those of the applicant in this

case. The wording FRIES has been disclaimed for use outside of the mark as a whole in theseregistrations.

The Office can require an applicant to disclaim an unregistrable part of a mark consisting of particular

wording, symbols, numbers, design elements or combinations thereof. 15 U.S.C. 1056(a). Under

Trademark Act Section 2(e), the Office can refuse registration of an entire mark if the entire mark is

merely descriptive, deceptively misdescriptive, or primarily geographically descriptive of the goods. 15

U.S.C. 1052(e). Thus, the Office may require an applicant to disclaim a portion of a mark that, when

used in connection with the goods or services, is merely descriptive, deceptively misdescriptive, primarily

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geographically descriptive, or otherwise unregistrable (e.g., generic). See TMEP 1213, 1213.03.

Failure to comply with a disclaimer requirement can result in a refusal to register the entire mark.

TMEP 1213.01(b).

A disclaimer is a statement that applicant does not claim exclusive rights to an unregistrable component

of a mark. TMEP 1213. A disclaimer does not affect the appearance of the applied-for mark. See

TMEP 1213.10.

A disclaimer does not physically remove the disclaimed matter from the mark, but rather is a written

statement that applicant does not claim exclusive rights to the disclaimed wording and/or design separate

and apart from the mark as shown in the drawing. TMEP 1213, 1213.10.

The computerized printing format for the Offices Trademark Official Gazette requires a standardized

format for a disclaimer. TMEP 1213.08(a)(i). The following is the standard format used by the Office:

No claim is made to the exclusive right to use FRIES apart from the mark as shown.

TMEP 1213.08(a)(i); see In re Owatonna Tool Co., 231 USPQ 493 (Commr Pats. 1983).

Advisory Correction to Classification of Goods

The trademark examining attorney is amending the application as follows. No prior approval or

authorization from applicant or applicants attorney is required. TMEP 707.02.

The application is amended to classify the goods processed potatoes goods in International Class 029.

TMEP 1401.03(b); see 37 C.F.R. 2.85.

If applicant has any questions about its application or needs assistance in responding to this Office Action

please telephone the assigned trademark examining attorney directly at the number listed below.

/Amy C. Kean/

Trademark Attorney, Law Office 113

U.S. Patent & Trademark Office

Phone 571-272-8854

Fax: 571-273-8854

RESPOND TO THIS ACTION:Applicant should file a response to this Office actiononline 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.For technical assistance with the form, please e-mailTEAS@uspto.gov. Forquestions about the Office action itself, please contact the assigned examining

attorney.Do not respond to this Office action by e-mail;the USPTO does not accept e-mailed

responses.If 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. Please use the following address: Commissioner for Trademarks, P.O. Box 1451,

Alexandria, VA 22313-1451.

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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. When conducting an online status check, print and maintain a copy of the

complete TARR screen. If the status of your application has not changed for more than six months, please

contact the assigned examining attorney.

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To: CPC Properties, Inc. (pecsenye@blankrome.com)

Subject: U.S. TRADEMARK APPLICATION NO. 77751423 - CRAB FRIES -

129716-00100

Sent: 9/2/2009 8:03:01 PM

Sent As: ECOM113@USPTO.GOV

Attachments:

IMPORTANT NOTICE REGARDING YOUR TRADEMARK

APPLICATION

Your trademark application (Serial No. 77751423) has been reviewed. The

examining attorney assigned by the United States Patent and Trademark Office(USPTO) has written a letter (an Office action) on 9/2/2009 to which you must

respond (unless the Office letter specifically states that no response is required).

Please follow these steps:

1. Read the Office letter by clicking on this link

http://tmportal.uspto.gov/external/portal/tow?DDA=Y&serial_number=77751423&doc_type=OOA&

OR go to http://tmportal.uspto.gov/external/portal/tow and enter your serial number to access the

Office letter. If you have difficulty accessing the Office letter, contact TDR@uspto.gov.

PLEASE NOTE: TheOffice letter may not beimmediately available but will beviewable within24

hours of this e-mail notification.

2. Contact the examining attorney who reviewed your application if you have any questions about the

content of the Office letter (contact information appears at the end thereof).

3. Respond within 6 months, calculated from 9/2/2009 (or sooner if specified in the Office letter), using

the Trademark Electronic Application System (TEAS) Response to Office Action form. If you have

difficulty using TEAS, contact TEAS@uspto.gov.

ALERT:Failure to file any required response by the applicable deadline will result in the ABANDONMENT

(loss) of your application.

Do NOT hit Reply to this e-mail notification, or otherwise attempt to e-mail your response, as the

USPTO does NOT accept e-mailed responses.