UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)
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`OFFICE ACTION (OFFICIAL LETTER) ABOUT APPLICANT’S TRADEMARK APPLICATION
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`(cid:160) (cid:160)(cid:160)(cid:160) U.S. APPLICATION SERIAL NO. 79113560
`(cid:160)(cid:160)(cid:160)(cid:160) MARK: REMIX SET
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`(cid:160) (cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
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`(cid:160)(cid:160)(cid:160) CORRESPONDENT ADDRESS:
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
`(cid:160)(cid:160) (cid:160)(cid:160) Marc-Thilo Schott,
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`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
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`(cid:160)(cid:160) (cid:160)(cid:160) Attorney at Law
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`*79113560*
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`(cid:160)C
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`LICK HERE TO RESPOND TO THIS LETTER:
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`http://www.uspto.gov/trademarks/teas/response_forms.jsp
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`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160) APPLICANT: Native Instruments GmbH
`(cid:160) (cid:160)(cid:160)(cid:160)(cid:160)(cid:160) CORRESPONDENT’S REFERENCE/DOCKET NO :(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
`(cid:160) (cid:160) (cid:160)(cid:160)(cid:160)
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`(cid:160) (cid:160) N/A
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`(cid:160)(cid:160)(cid:160) CORRESPONDENT E-MAIL ADDRESS:(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
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`OFFICE ACTION
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`STRICT DEADLINE TO RESPOND TO THIS LETTER
`TO AVOID ABANDONMENT OF APPLICANT’S TRADEMARK APPLICATION, THE USPTO MUST RECEIVE APPLICANT’S
`COMPLETE RESPONSE TO THIS LETTER WITHIN 6 MONTHS OF THE ISSUE/MAILING DATE BELOW.
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`(cid:160) I
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`SSUE/MAILING DATE:
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`THIS IS A FINAL ACTION.
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`(cid:160) I
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`(cid:160)(cid:160)
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`NTERNATIONAL REGISTRATION NO. 1117896
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`SUBSEQUENT FINAL REFUSAL
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`(cid:160) P
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`roper Response to FINAL Office Action
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`(cid:160)(cid:160)(cid:160)
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`(cid:160)(cid:160)(cid:160)
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`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
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`(cid:160)(cid:160) (cid:160)(cid:160)(cid:160)(cid:160) Friedrichstrasse 153a
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`(cid:160)(cid:160) (cid:160)(cid:160)(cid:160)(cid:160)
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`10117 Berlin
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`(cid:160)(cid:160) (cid:160)(cid:160) FED REP GERMANY
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`(cid:160)
`(cid:160)(cid:160)
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`Applicant must respond within six months of the date of issuance of this final Office action or the application will be abandoned.(cid:160) 15 U.S.C.
`§1062(b); 37 C.F.R. §2.65(a).(cid:160) Applicant may respond by providing one or both of the following:
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`(1)(cid:160) A response that fully satisfies all outstanding requirements;
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`(2)(cid:160) An appeal to the Trademark Trial and Appeal Board, with the appeal fee of $100 per class.
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`(cid:160) 3
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`7 C.F.R. §2.64(a); TMEP §714.04; see 37 C.F.R. §2.6(a)(18); TBMP ch. 1200.
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`(cid:160)I
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`n certain rare circumstances, an applicant may respond by filing a petition to the Director pursuant to 37 C.F.R. §2.63(b)(2) to review
`procedural issues.(cid:160) 37 C.F.R. §2.64(a); TMEP §714.04; see 37 C.F.R. §2.146(b); TBMP §1201.05; TMEP §1704 (explaining petitionable
`matters).(cid:160) The petition fee is $100.(cid:160) 37 C.F.R. §2.6(a)(15).
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`(cid:160) T
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`Office action that issued on April 5, 2013.(cid:160)(cid:160)
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`his subsequent final refusal is issued because the examining attorney herein introduces additional evidence directed to the issue for
`which reconsideration is sought.(cid:160) The applicant filed a timely request for reconsideration on September 11, 2013, responding to the final
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`PLEASE NOTE THE FOLLOWING REGARDING FILING A REQUEST FOR RECONSIDERATION AFTER
`A FINAL ACTION.(cid:160) See TMEP Section 715.03(c).
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`(cid:160) 7
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`15.03(c)(cid:160)(cid:160) Time for Appeal Runs from Issuance Date of Final Action(cid:160)
`Filing a request for reconsideration does not stay the time for responding to a final
`refusal.(cid:160) See 15 U.S.C. §1062(b); 37 C.F.R. §§2.64(b), 2.142(a).(cid:160) If the examining attorney
`denies an applicant’s request for reconsideration, the deadline for filing a notice of
`appeal to the Board (or petition to the Director if permitted by 37 C.F.R. §2.63(b)(2)) runs
`from the issuance date of the final action.(cid:160) If this deadline has expired and the applicant
`has not filed a notice of appeal, the application will be abandoned due to an incomplete
`response.(cid:160) 15 U.S.C. §1062(b); 37 C.F.R. §2.65(a).(cid:160) The applicant may not file a petition to
`revive under 37 C.F.R. §2.66, based on unintentional delay.(cid:160) See TMEP §1714.01(f)(ii)(A).(cid:160)
`The applicant’s recourse is to file a petition to the Director under 37 C.F.R. §2.146 to
`reverse the examining attorney’s holding of abandonment. (cid:160) However, the Director will
`reverse the examining attorney’s action on petition only where there has been clear
`error or an abuse of discretion.(cid:160) See TMEP §1713.01.
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`Applicant’s arguments have been considered and found unpersuasive for the reasons set forth below.
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`(cid:160) S
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`ection 2(e)(1) Refusal – Descriptive – Continued - SUBSEQUENT FINAL REFUSAL
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`The FINAL refusal under Trademark Act Section 2(e)(1) is continued for the reasons set forth below.(cid:160) See 15 U.S.C. §1052(e)(1); 37 C.F.R.
`§2.64(a).
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`(cid:160)
`(cid:160)
`(cid:160)(cid:160)
`(cid:160)
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`A mark is merely descriptive if it describes an ingredient, quality, characteristic, function, feature, purpose, or use of an applicant’s goods
`and/or services.(cid:160) TMEP §1209.01(b); see, e.g., DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 1251, 103 USPQ2d 1753,
`1755 (Fed. Cir. 2012) (quoting In re Oppedahl & Larson LLP, 373 F.3d 1171, 1173, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004)); In re
`Steelbuilding.com, 415 F.3d 1293, 1297, 75 USPQ2d 1420, 1421 (Fed. Cir. 2005) (citing Estate of P.D. Beckwith, Inc. v. Comm’r of Patents ,
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`252 U.S. 538, 543 (1920)).(cid:160)(cid:160)
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`Descriptiveness Determined in Relation to Goods/Services
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`The determination of whether a mark is merely descriptive is made in relation to an applicant’s goods and/or services, not in the abstract. (cid:160)
`DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 1254, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012); In re The Chamber of
`Commerce of the U.S., 675 F.3d 1297, 1300, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012); TMEP §1209.01(b); see, e.g., In re Polo Int’l Inc. , 51
`USPQ2d 1061, 1062-63 (TTAB 1999) (finding DOC in DOC-CONTROL would refer to the “documents” managed by applicant’s software
`rather than the term “doctor” shown in a dictionary definition); In re Digital Research Inc., 4 USPQ2d 1242, 1243-44 (TTAB 1987) (finding
`CONCURRENT PC-DOS and CONCURRENT DOS merely descriptive of “computer programs recorded on disk” where the relevant trade
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`used the denomination “concurrent” as a descriptor of a particular type of operating system). (cid:160)(cid:160)
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`“Whether consumers could guess what the product [or service] is from consideration of the mark alone is not the test.” (cid:160) In re Am. Greetings
`Corp., 226 USPQ 365, 366 (TTAB 1985).
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`(cid:160) D
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`escriptiveness – In Relation to Goods/Services, Context of Use, Significance to Average Purchaser
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`Determining the descriptiveness of a mark is done in relation to an applicant’s goods and/or services, the context in which the mark is being
`used, and the possible significance the mark would have to the average purchaser because of the manner of its use or intended use.(cid:160) See In re The
`Chamber of Commerce of the U.S., 675 F.3d 1297, 1300, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012) (citing In re Bayer Aktiengesellschaft, 488
`F.3d 960, 963-64, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007)); TMEP §1209.01(b).(cid:160) Descriptiveness of a mark is not considered in the abstract.(cid:160) In
`re Bayer Aktiengesellschaft, 488 F.3d at 963-64, 82 USPQ2d at 1831.
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`(cid:160) D
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`escriptiveness – Determined by Someone Who Knows What the Goods/Services Are
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`“Whether consumers could guess what the product [or service] is from consideration of the mark alone is not the test.” (cid:160) In re Am. Greetings
`Corp., 226 USPQ 365, 366 (TTAB 1985).(cid:160) The question is not whether someone presented only with the mark could guess what the goods
`and/or services are, but “whether someone who knows what the goods and[/or] services are will understand the mark to convey information
`about them.” (cid:160) DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 1254, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012) (quoting
`In re Tower Tech, Inc., 64 USPQ2d 1314, 1316-17 (TTAB 2002)); In re Franklin Cnty. Historical Soc’y , 104 USPQ2d 1085, 1087 (TTAB
`2012).
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`(cid:160) N
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`ot Necessary to Describe All Attributes of Goods/Services
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`(cid:160) In re
`“A mark may be merely descriptive even if it does not describe the ‘full scope and extent’ of the applicant’s goods or services.”
`Oppedahl & Larson LLP, 373 F.3d 1171, 1173, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004) (citing In re Dial-A-Mattress Operating Corp., 240
`F.3d 1341, 1346, 57 USPQ2d 1807, 1812 (Fed. Cir. 2001)); TMEP §1209.01(b).(cid:160) It is enough if a mark describes only one significant function,
`attribute, or property.(cid:160) In re The Chamber of Commerce of the U.S., 675 F.3d 1297, 1300, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012); TMEP
`§1209.01(b); see In re Oppedahl & Larson LLP, 373 F.3d at 1173, 71 USPQ2d at 1371.
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`(cid:160) C
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`onsider Marks as a Whole, but Can Weigh Individual Components
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`Marks comprising more than one element must be considered as a whole and should not be dissected; however, a trademark examining attorney
`may consider the significance of each element separately in the course of evaluating the mark as a whole.(cid:160) See DuoProSS Meditech Corp. v.
`Inviro Med. Devices, Ltd., 695 F.3d 1247, 1253, 103 USPQ2d 1753, 1756-57 (Fed. Cir. 2012) (reversing Board’s denial of cancellation for
`SNAP! with design for medical syringes as not merely descriptive when noting that the Board “to be sure, [could] ascertain the meaning and
`weight of each of the components that ma[de] up the mark”); In re Hotels.com, L.P., 573 F.3d 1300, 1301, 1304, 1306, 91 USPQ2d 1532, 1533,
`1535, 1537 (Fed. Cir. 2009) (holding HOTELS.COM generic for information and reservation services featuring temporary lodging when noting
`that the Board did not commit error in considering “the word ‘hotels’ for genericness separate from the ‘.com’ suffix”).
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`(cid:160)
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`Other Meanings of Mark Not Relevant
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`Descriptiveness is considered in relation to the relevant goods and/or services.(cid:160) DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d
`1247, 1254, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012).(cid:160) “That a term may have other meanings in different contexts is not controlling.” (cid:160) In re
`Franklin Cnty. Historical Soc’y , 104 USPQ2d 1085, 1087 (TTAB 2012) (citing In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979));
`TMEP §1209.03(e).
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`(cid:160) A
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`PPLICANT’S ARGUMENTS
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`The applicant argues, inter alia, the following.
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`(cid:160) “
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`The applicant’s good which shall be protected under the trademark “Remix Set” is a collection of audio files that each represent a sound,
`part, vocal instrument, riff, or some other component of a complete song. The “Remix Set” also contains all the metadata required to properly
`load the audio files into the remix deck and also dictates the playback behaviors of each file such as the tempo at which they play, the
`pitch/key, loop areas, and synchronization references, among others. All of the audio files and metadata are wrapped up and encapsulated in a
`single file container that can be easily stored and distributed.”
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`(cid:160) “
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`The applicant’s trademark “Remix Set” does not describe a feature because the good of this name does not contain remixes. Firstly, remixes
`as referred to in the music industry are tracks that have been altered in one way or another. The content of the applicant’s goods is limited to
`small fractions of tracks in the form of sounds, riffs, etc. It therefore does not contain any full tracks. Secondly, the term “remix” is not
`exclusively used in the music industry, but is a generally used term to express that something old has been deliberately altered to create
`something new.”
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`(cid:160) “
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`The applicant’s trademark also does not describe a characteristic of the applicant’s goods. A characteristic is a distinguishing trait, quality
`or property. The applicant’s goods are not remixes, thus the component “remix” in the applicant’s trademark cannot be considered as a
`characteristic. But even if they were remixes, the word “remix” would then not be a quality or trait, but a denomination.”
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`(cid:160) “
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`The component “set” in the applicant’s trademark commonly describes a number of things of the same kind that belong or are used
`together. In that sense the component “set” of the applicant’s trademark does indeed describe a characteristic. However, “set” is only one
`component of the applicant’s trademark and the trademark needs to be evaluated as a whole. The trademark “Remix Set” could only be
`considered a characteristic of the applicant’s goods if the good were a collection of remixes, a collection of music tracks. That is precisely not
`the case.”
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`(cid:160) T
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`he applicant’s applied-for mark is REMIX SET. (cid:160) The applicant seeks registration for the following good:(cid:160) Computer software for
`generating music and sound.(cid:160) As set forth above, a mark is merely descriptive if it describes an ingredient, quality, characteristic,
`function, feature, purpose, or use of an applicant’s goods and/or services .(cid:160) Also as set forth above, descriptiveness is considered in
`relation to the goods, and the fact that a term may have other meanings in different contexts is not controlling.(cid:160) (Emphasis added.)
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`(cid:160) B
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`(cid:160) The applicant states that, “ The component
`y the applicant’s own admission, the wording “SET” is descriptive of the applicant’s goods.
`“set” in the applicant’s trademark commonly describes a number of things of the same kind that belong or are used together. In that sense the
`component “set” of the applicant’s trademark does indeed describe a characteristic .”
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`(cid:160) W
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`ith respect to the wording “REMIX,” REMIX is defined as “a song that has been edited to sound different from the original version.” (cid:160)
`http://en.wikipedia.org/wiki/Remix.(cid:160) Evidence herein shows that the applicant’s good is software that is used to create or generate a remix set
`for DJs or used to remix songs and live sets for DJs or other users.(cid:160) “SET,” in music, is defined as “a collection of objects.” (cid:160)
`http://en.wikipedia.org/wiki/Set_(music).(cid:160) In addition, “set” is defined as “group of things [countable] a group of similar things that belong
`together or are related in some way.” (cid:160) http://www.ldoceonline.com/Music-topic/set_2.(cid:160) Longman Dictionary of Contemporary English.(cid:160) A “DJ
`set” is defined as “ A DJ mix or DJ mixset is a sequence of musical tracks typically mixed together to appear as one continuous track. When a
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`DJ mix or DJ mixset is recorded onto some medium, it is often referred to as a mix tape. ...” (cid:160) http://en.wikipedia.org/wiki/Dj_set.(cid:160)(cid:160)
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`

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`See attached evidence.
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`(cid:160) I
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`n addition, the attached Internet evidence shows that the applicant’s good, namely, “Computer software for generating music and sound,” is
`used for providing DJs or disc jockeys, of different musical genres with complete tracks by renowned artists for enhancing sets, jamming and live
`remixing.(cid:160) (Emphasis added.)(cid:160) The good “provides DJs with 64 loops and one-shot-samples that are divided into different sections identified by
`groups, pages and colors.” (cid:160) The evidence shows the following, regarding the function, use, and purpose of the good:
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`(cid:160) “
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`With the all-new generation of TRAKTOR Remix Sets, DJs of any genre get inspiring fuel to perform live edits, layer individual parts, or work
`individual song elements by different artists coherently into their own DJ sets with total freedom, creating their own trademark sound.”
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`(cid:160) T
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`he evidence further shows the following regarding the applicant (NATIVE INSTRUMENTS) and the applicant’s applied-for good: (cid:160)(cid:160)
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`Native Instruments introduces new generation of artist-based TRAKTOR Remix Sets
`Berlin, November 15, 2012 – Native Instruments today introduced a new generation of TRAKTOR Remix Sets set up for immediate use with the latest TRAKTOR
`software with Remix Deck™ technology. These exclusive premium-grade loops and one-shot sample packs provide DJs of different musical genres with complete
`tracks by renowned artists for enhancing sets, jamming and live remixing. Released in cooperation with leading online music retailers, the series kicks off in style
`with M.A.N.D.Y., who are celebrating 10 years of Get Physical with their track ‘Twisted Sister’, out now exclusively on Beatport.
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`Programmed for ease-of-use and flexibility, the ‘Twisted Sister’ Remix SetTM provides DJs with 64 loops and one-shot-samples that are divided into different
`sections, identified by groups, pages and colors. All pages contain the original track split into four easy to use groups for drums (red), bass (pink), synthesizer lead
`(green) and sound effects/vocals (blue). While pages 1 and 2 contain the key elements of a track, pages 3 and 4 are the performance pages providing performable
`synths and additional vocal shots. With this new generation of TRAKTOR Remix Sets, DJs now have the ability to truly perform live.
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`TRAKTOR’s Remix Decks were introduced with the new version of NI’s flagship DJ software TRAKTOR PRO 2.5, which came as a free update for all existing
`users of TRAKTOR PRO 2. Remix Decks allow DJs to creatively remix and rearrange tracks before and during their actual performance. With the all-new generation
`of TRAKTOR Remix Sets, DJs of any genre get inspiring fuel to perform live edits, layer individual parts, or work
`individual song elements by different artists coherently into their own DJ sets with total freedom, creating their
`own trademark sound.
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`Each regular track deck within TRAKTOR PRO 2 and TRAKTOR SCRATCH PRO 2 can be switched to a Remix Deck, thus offering dedicated transport, sync and
`tempo master controls. With its 16 stylish, multi-colored pads to fire loops and one-shot samples, the TRAKTOR KONTROL F1 was designed specifically to control
`the TRAKTOR Remix Decks and provides full and tactile control – DJs can combine this with Native Scratch timecode control via vinyl or CDs, or use the jog
`wheels of the KONTROL S4 and KONTROL S2 hardware.
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`Pricing and availability
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`All TRAKTOR Remix Sets are available exclusively through major download shops for less than $4.99*.
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`The ‘Twisted Sister’ Remix SetTM by M.A.N.D.Y. is available now exclusively at www.beatport.com/release/twisted-sister-traktor-f1-remix-pack/997363
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`Further product information and press material
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`A video of M.A.N.D.Y discussing the details of their all new and exclusive Remix Set is available on YouTube at:
`http://youtu.be/-43dtevq5M0
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`Additional information on the new generation of TRAKTOR Remix Sets is available at
`www.native-instruments.com/traktorremixsets
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`So super cheap high quality and very regular paid-for content to make the Remix Decks sing… I’m all for it – brilliant idea. There has been much talk over the years
`about mashups and remixes, and with this new type of product, the idea of delivering track stems into the hands of end users to make their own remixes is brilliant, as
`is providing raw materials to allow these familiar bits and bobs to be used in conjunction with other familiar materials too. That said, having some fresh raw material
`is going to allow people to be pretty creative, provided we don’t suddenly get a slew of same sounding Remix Set based dance tracks hitting Beatport.
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`The biggest thing for me is the price – there is one. I’m a firm believer in things having value – just because you don’t have a tangible touchable product doesn’t
`mean that it’s worthless. I find that the market is awash with too much free stuff that is pretty dire from a quality perspective, which makes it hard for the good stuff
`to get any attention. NI and Beatport have the machine to put out this kind of thing on a regular basis and get paid. The phrase “you get what you pay for” will
`probably be very true here. It’s all about perceived value.
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`

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`(cid:160)h
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`ttp://djworx.com/remix-sets-fuel-for-your-traktor-kontrol-f1/(cid:160) (Emphasis added.)
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`(cid:160)F
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`urther, the attached Internet evidence shows remix software and DJ remix software.
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`(cid:160) F
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`inally, the applicant’s website, www.native-instruments.com/traktorremixsets, shows that the applied-for mark, REMIX SET, is for software,
`and is descriptive of the good (“ Computer software for generating music and sound”) (cid:160) in that the good (software) enables “complete tracks by
`renowned artists and DJs, set up for immediate use with TRAKTOR PRO 2’s Remix Decks and ….”(cid:160) See attached evidence from the
`applicant’s website.
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`(cid:160)T
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`he applicant’s applied-for good, namely, “ Computer software for generating music and sound,” is used for remixing sets (or collections) of
`music.(cid:160) The mark, REMIX SET, is therefore descriptive of the good in that it describes a feature, purpose, and use of the good.(cid:160) The software
`enables DJs to remix tracks, and/or the software creates a remix set or a remix collection of music or tracks.
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`(cid:160) B
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`ased on the above, the mark is merely descriptive and thus unregistrable on the Principal Register.
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`(cid:160) S
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`ection 2(f) Suggested – Based on Evidence and/or Five Years’ Use
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`If applicant believes that its mark has acquired distinctiveness in the United States, that is, that it has become a distinctive source indicator for
`the goods and/or services, applicant may seek registration on the Principal Register under Trademark Act Section 2(f) based on (1) extrinsic
`evidence and/or (2) a verified statement of applicant’s substantially exclusive and continuous use of the applied-for mark in commerce for at
`least the five years prior to the date of the amendment to Section 2(f).(cid:160) See 15 U.S.C. §1052(f); TMEP §§1010, 1212.08.(cid:160) The USPTO will
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`decide each case on its own merits.(cid:160)(cid:160)
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`To establish acquired distinctiveness by extrinsic evidence or long-term use, an applicant may rely only on use in commerce that may be
`regulated by the U.S. Congress.(cid:160) See 15 U.S.C. §§1052(f), 1127.(cid:160) Use solely in a foreign country or between two foreign countries is not
`evidence of acquired distinctiveness in the United States.(cid:160) In re Rogers, 53 USPQ2d 1741, 1746-47 (TTAB 1999); TMEP §§1010, 1212.08.
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`(cid:160) E
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`XTRINSIC EVIDENCE OF ACQUIRED DISTINCTIVENESS:
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`(cid:160) T
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`he following factors are generally considered when determining whether a proposed mark has acquired distinctiveness based on extrinsic
`evidence:(cid:160) (1) length and exclusivity of use of the mark in the United States by applicant; (2) the type, expense, and amount of advertising of the
`mark in the United States; and (3) applicant’s efforts in the United States to associate the mark with the source of the goods and/or services,
`such as unsolicited media coverage and consumer studies.(cid:160) See In re Steelbuilding.com, 415 F.3d 1293, 1300, 75 USPQ2d 1420, 1424 (Fed. Cir.
`2005); Bd. of Trs. v. Pitts, Jr., 107 USPQ2d 2001, 2016 (TTAB 2013).(cid:160) A showing of acquired distinctiveness need not consider all of these
`factors, and no single factor is determinative.(cid:160) In re Steelbuilding.com, 415 F.3d at 1300, 75 USPQ2d at 1424; see TMEP §§1212.06 et seq.
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`(cid:160) E
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`vidence of acquired distinctiveness may include specific dollar sales under the mark, advertising figures, samples of advertising, consumer or
`dealer statements of recognition of the mark as a source identifier, affidavits, and any other evidence that establishes the distinctiveness of the
`mark as an indicator of source.(cid:160) See 37 C.F.R. §2.41(a); In re Ideal Indus., Inc., 508 F.2d 1336, 1339-40, 184 USPQ 487, 489-90 (C.C.P.A.
`1975); In re Instant Transactions Corp. of Am., 201 USPQ 957, 958-89 (TTAB 1979); TMEP §§1212.06 et seq.
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`(cid:160) V
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`ERIFIED STATEMENT OF FIVE YEARS’ USE:
`
`(cid:160) T
`
`o amend the application to assert Section 2(f) based on five years’ use, applicant should provide information regarding the length of use of the
`mark in commerce and/or dates of use, and include the following written statement claiming acquired distinctiveness:
`
`The mark has become distinctive of the goods and/or services through applicant’s substantially exclusive and continuous use in
`commerce for at least the five years immediately before the date of this statement.
`
`(cid:160)
`

`

`(cid:160) S
`
`ee 15 U.S.C. §1052(f); 37 C.F.R. §2.41(b); TMEP §§1010, 1212.05(d), 1212.08.(cid:160) Applicant must verify this statement with an affidavit or
`signed declaration under 37 C.F.R. §2.20.(cid:160) 37 C.F.R. §2.41(b); TMEP §1212.05(d); see 37 C.F.R. §2.193(e)(1).
`
`(cid:160) A
`
`pplicant May Wish to Seek Trademark Counsel
`
`Because of the legal technicalities and strict deadlines involved in the USPTO application process, applicant may wish to hire a qualified U.S.
`attorney specializing in trademark matters to represent applicant in this process and provide legal advice.(cid:160) Although the undersigned trademark
`examining attorney is permitted to help an applicant understand the contents of an Office action as well as the application process in general, no
`USPTO attorney or staff is permitted to give an applicant legal advice or statements about an applicant’s legal rights. (cid:160) TMEP §§705.02, 709.06.(cid:160)
`For attorney referral information, applicant may consult the American Bar Association’s Consumers’ Guide to Legal Help at
`http://www.abanet.org/legalservices/findlegalhelp/home.cfm.(cid:160) The USPTO may not assist an applicant in the selection of an attorney.(cid:160) 37 C.F.R.
`§2.11.
`
`(cid:160) I
`
`f applicant does not hire an attorney to respond to this Office action on applicant’s behalf, then any response to this Office action must be
`personally signed by an individual applicant, all joint applicants, or someone with legal authority to bind a juristic applicant (e.g., a corporate
`officer or general partner).(cid:160) 37 C.F.R. §§2.62(b), 2.193(e)(2)(ii); TMEP §712.01.(cid:160) If applicant hires a qualified U.S. attorney to respond on his or
`her behalf, then the attorney must sign the response.(cid:160) 37 C.F.R. §§2.193(e)(2)(i), 11.18(a); TMEP §§611.03(b), 712.01.(cid:160) Qualified U.S. attorneys
`include those in good standing with a bar of the highest court of any U.S. state, the District of Columbia, Puerto Rico, and other federal
`territories and possessions of the United States.(cid:160) See 37 C.F.R. §§2.17(a), 2.62(b), 11.1, 11.14(a); TMEP §§602, 712.01.(cid:160) Additionally, for all
`responses, the proper signatory must personally sign the document or personally enter his or her electronic signature on the electronic filing.(cid:160) See
`37 C.F.R. §2.193(a), (e)(2); TMEP §§611.01(b), 611.02.(cid:160) The name of the signatory must also be printed or typed immediately below or adjacent
`to the signature, or identified elsewhere in the filing.(cid:160) 37 C.F.R. §2.193(d); TMEP §611.01(b).
`
`(cid:160) I
`
`n general, foreign attorneys are not permitted to represent applicants before the USPTO (e.g., file written communications, authorize an
`amendment to an application, or submit legal arguments in response to a requirement or refusal).(cid:160) See 37 C.F.R. §11.14(c), (e); TMEP §§602.03-
`.03(b), 608.01.
`
`Further action awaits response to the above.
`
`/Mrs. W. Kay H. Price, Esq./
`
`Trademark Attorney
`
`Law Office 103
`
`United States Patent and Trademark Office
`
`(571) 272-9391
`
`w.kay.price@uspto.gov
`
`(cid:160) T
`
`O RESPOND TO THIS LETTER: (cid:160) Go to http://www.uspto.gov/trademarks/teas/response_forms.jsp. (cid:160) Please wait 48-72 hours from the
`issue/mailing date before using the Trademark Electronic Application System (TEAS), to allow for necessary system updates of the application.(cid:160)
`For technical assistance with online forms, e-mail TEAS@uspto.gov.(cid:160) For questions about the Office action itself, please contact the assigned
`trademark examining attorney.(cid:160) E-mail communications will not be accepted as responses to Office actions; therefore, do not respond to
`
`(cid:160)
`(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)(cid:160)
`

`

`this Office action by e-mail.
`
`(cid:160) A
`
`ll informal e-mail communications relevant to this application will be placed in the official application record.
`
`(cid:160) W
`
`HO MUST SIGN THE RESPONSE:(cid:160) It must be personally signed by an individual applicant or someone with legal authority to bind an
`applicant (i.e., a corporate officer, a general partner, all joint applicants).(cid:160) If an applicant is represented by an attorney, the attorney must sign the
`
`response.(cid:160)(cid:160)
`
`PERIODICALLY CHECK THE STATUS OF THE APPLICATION: (cid:160) To ensure that applicant does not miss crucial deadlines or official
`notices, check the status of the application every three to four months using the Trademark Status and Document Retrieval (TSDR) system at
`http://tsdr.uspto.gov/. (cid:160) Please keep a copy of the TSDR status screen. (cid:160) If the status shows no change for more than six months, contact the
`Trademark Assistance Center by e-mail at TrademarkAssistanceCenter@uspto.gov or call 1-800-786-9199. (cid:160) For more information on checking
`status, see http://www.uspto.gov/trademarks/process/status/.
`
`(cid:160) T
`
`O UPDATE CORRESPONDENCE/E-MAIL ADDRESS:(cid:160) Use the TEAS form at http://www.uspto.gov/trademarks/teas/correspondence.jsp.
`
`(cid:160)(cid:160)
`

`

`http:i'i'en.wil<ipedia orciilii\ril<ii'Set (music)
`
`11fO8i’2013 09:43 56 PM
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`Set (music)
`From Wikipedia, the free encyclopedia
`
`A set [pitch set, pitch-class set, set class, set form, pitch collection) in music theory, as in
`mathematics and general parlance, is a collection of objects. ln musical contexts the term is
`traditionaliy applied most otten to collections of pitches or pitch—cIasses, but theorists have
`extended its use to other types of musical entities, so that one may speak of sets of durations or
`timt:-res, tor e)(ample.[2l
`
`A set by itseifdoes not necessarriy possess any additional structure, such as an ordering.
`Nevertheless, it is often musically important to consider sets that are equipped with an order
`relation (caiied segments); in such contexts, bare sets are often reterred to as "unordered", for the
`sake of emphasis?”
`Twoelement sets are calied dyads, three—element sets trichords [occasionally "triads", though this
`is easily confused with the traditional meaning of the word triad). Sets of higher cardinalities are
`called tetrachords {or tetrads), pentachords (or pentads), hexachords (or hexads), heptachords
`(heptads or, sometimes, mixing Latin and Greek roots, "septachords"—e.g_,l5l), octachords
`(octads), nonachords (nonads), decachords (decads), undecachords, and, finally, the dodecachord
`
`~ ll
`4 [3
`5
`6
`?
`J‘ = 3
`Six—elerrierat set of rhythmic values used 51
`[1]
`in l.v’ai'i'azi'oni canoniche by Luigi Nono
`
`Prime fonn of five pitch class set from £71
`lgor Stravinsky's in memoriam Dylan
`Thomasm
`
`A time—point set is a duration set where the distance in time units between attack points, or time—points, is the distance in semitones between
`pitch ciasses.[5l
`
`Contents [hide]
`1 Serial
`2 Non—serial
`3 Vectors
`4 See also
`5 Further reading
`6 References
`1'' External iinks
`
`Serial
`
`[edit]
`
`In the theory of serial music, however, some El.illiDFS[wea5el WW5] [notably Miflon Babbittm) use the term "set" where others would use "row" or
`"series", namely to denote an ordered collection [such as a twei\ie—tone row) used to structure a work. These aLflh0rS[wea‘9El ""°""5] speak of
`
`

`

`httpzffenwikipedia orci£wikifSet (music)
`
`11fO8i'2013 09:43 56 PM
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`bflllflh I I|i1lllB|_'|( IU UBIIUIB i1IIUI(.It:|B(.I I..UIlB1.l|UII[bllI..||i1h i1lWBI\i'U-lU||UIUW}L.|bBUlU §2lIUI..lU|t2 £1 WUI IS.
`“twelve tone sets"_ “tirne—point sets"_ “derived sets"_ etc, (See below) This is a ditferent usage of the term ‘set’ from that described above (and
`referred to in the term “set theory“).
`
`For these alithors,[*"‘°*“959’ ""°"’53 a sefforrn (or rowfimnj is a particular arrangement of such an ordered set; the prime form (original order),
`inverse {upside down), retrograde (backwards), and retrograde imierse {backwards and mid