`
`u.s. Patent & TMOfcITM Mail Hem Dr. #30‘
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`C_
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`2:3 I
`23 ;
`9 ‘
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`as:
`I
`
`In re U.S. Trademark Applications
`-
`Serial NOS. 76/211,024 and 76/211,022
`and
`Opposition No. 91153460
`
`Doumak, lnc., Opposer
`
`v.
`
`Consolidated Biscuit C0,, Applicant.
`
`\—~—._—~f~.—
`
`Opposition No. 91153460
`
`January 23, 2003
`
`MOTION TO AMEND APPLICATION UNDER 37 C.F.R. 2.’I33IaI
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`_ Consolidated Biscuit Co., hereby requests amendment to the identification of
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`goods in Class 30 in the two applications identified above, that are the subject of:
`I
`
`Opposition No. 91153460.
`
`The goods in class 30 are currently described as:
`
`C A N D Y
`
`A N
`
`I
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`CONFECTIONS,
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`EXCLUDING
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`IVIARSHMALLOWS
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`AND MARSHIVIALLOWI,
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`CONFECTIONS, NAMELY, CHOCOLATE, CHOCOLATE CHIPS, BUTTERSCOTCH M
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`
`
`
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`.1.9“D43‘.
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`CHIPS, HARD CANDIES, CANDIES CONTAINING JELLY, LICORICE AIIND
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`CHOCOLATE COVERED NUTS, ALL FOR SNACKING AND EATING.
`
`The goods in class 30 should be amended to:
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`C H O C O L A T
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`,
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`CHOCOLATE CHIPS, BUTTERSCOTCH CHIPS, HARD CANDIES, PEANUT BRITTILE,
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`I
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`CANDIES CONTAINING JELLY, LICORICE AND CHOCOLATE COVERED NUTS, ALL
`I
`I
`,l
`I
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`FOR SNACKING AND EATING.
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`The changes to the identification of goods consist of the removal of the
`I
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`prefatory language
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`”Candy and confections,
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`excluding marshmallows
`
`andI
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`marshmallow confections” and the addition of the terminology ”peanut brittle”.
`
`IiI
`
`The addition of the terminology ”peanut brittle” does not broaden the
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`identification of goods. The existing identification of goods already includes ”hard
`candies” as well as "candies containing chocolate covered nuts". Peanut brittle
`a hard candy that contains nuts. Therefore, peanut brittle is logically incIudedI.,
`
`within the scope of the terms originally identified.
`
`As indicated in TMEP I402.06(a),
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`I
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`I
`I
`i
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`If an applicant wishes to amend the identification
`of goods and services to insert an item that is equivalent
`to or logically encompassed by an item already included
`in the identification of goods and services, the examining
`attorney should permit the amendment, if it is timely and
`otherwise proper.
`
`
`
`
`
`Consolidated Biscuit and Doumak have agreed to settle this opposition and1
`
`the Opposer, Doumak, has expressly consented to the amended identification iof
`goods in Class 30, as set forth above. Upon the filing of the amendment herein to
`the identification of goods, Doumak will withdraw its Notices of Opposition to
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`registration of Consolidated Biscuit's trademark applications.
`
`Favorable action is solicited.
`
`Respectfully submitted,
`
`CONSOLIDATED BISCUIT CO.
`
`,
`
`1
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`/gm, /?»AeZa,,A
`
`Charles R. Schaub
`
`Attorney for Applicant
`
`E
`
`EMCH, SCHAFFER, SCHAUB
`
`& PORCELLO CO., L.P.A.
`P.O. Box 916
`
`Toledo, Ohio 43697-0916
`
`419 243-1294 phone
`419 2438502 fax
`
`CERTlFlCATE OF SERVICE
`
`This is to certify that a copy of this MOTlON T0 AMEND APPLICATION
`UNDER 37 C.F.R. 2.133(a) WITH CONSENT was sent by regular U.S. mail to Stacy
`Y. Dixon, Esq., attorney for Opposer, at the address of Lord, Bissell & Brook, 115
`South LaSalle Street, Suite 3500, Chicago,
`Illinois, 60603,
`this 23rd day of
`
`January, 2003.
`
`l
`
`l
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`CRS:RD
`
`2,
`5
`Charles R. Schaub
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