To:
`
`Subject:
`
`Sent:
`
`Sent As:
`
`Attachments:
`
`Dive Guardians, Inc. (attorneys@brandxperts.com)
`
`U.S. TRADEMARK APPLICATION NO. 88368475 - HELPING THOSE WHO SERVE US - DG-
`HTWSU-1w
`
`6/17/2019 3:24:48 PM
`
`ECOM127@USPTO.GOV
`
`Attachment - 1
`Attachment - 2
`Attachment - 3
`Attachment - 4
`Attachment - 5
`Attachment - 6
`Attachment - 7
`Attachment - 8
`Attachment - 9
`Attachment - 10
`Attachment - 11
`Attachment - 12
`
`UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)
`
`OFFICE ACTION (OFFICIAL LETTER) ABOUT APPLICANT’S TRADEMARK APPLICATION
`
`*88368475*
`
`CLICK HERE TO RESPOND TO THIS
`LETTER:
`
`http://www.uspto.gov/trademarks/teas/response_forms.jsp
`
`VIEW YOUR APPLICATION FILE
`
`U.S. APPLICATION
`SERIAL NO.   88368475
`
`           
`
`MARK: HELPING
`THOSE WHO SERVE US
`
`CORRESPONDENT
`ADDRESS:
`  
`       STEPHEN L.
`ANDERSON
`
`       ANDERSON LAW -
`  
`WE PROTECT
`IMAGINATION!
`
`         41923 SECOND
`STREET, SUITE 201
`
`           TEMECULA, CA
`92590
`
`    
`
`   
`
`APPLICANT: Dive
`Guardians, Inc.
`
`    
`
`CORRESPONDENT’S
`REFERENCE/DOCKET
`
`NO:       
`
`  DG-HTWSU-1w
`
`CORRESPONDENT E-
`
`MAIL ADDRESS:       
`
`attorneys@brandxperts.com
`
` 
` 
` 
` 
` 
` 
` 
`

`

`OFFICE ACTION
`
`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.   A RESPONSE
`TRANSMITTED THROUGH THE TRADEMARK ELECTRONIC APPLICATION SYSTEM (TEAS) MUST BE RECEIVED BEFORE
`MIDNIGHT EASTERN TIME OF THE LAST DAY OF THE RESPONSE PERIOD.
`
`ISSUE/MAILING DATE: 6/17/2019
`
`    
`
`The referenced application has been reviewed by the assigned trademark examining attorney.  Applicant must respond timely and completely to
`the issue(s) below.  15 U.S.C. §1062(b); 37 C.F.R. §§2.62(a), 2.65(a); TMEP §§711, 718.03.
`
`SEARCH OF OFFICE’S DATABASE OF MARKS
`
`The trademark examining attorney has searched the USPTO’s database of registered and pending marks and has found no similar registered
`marks that would bar registration under Trademark Act Section 2(d).  TMEP §704.02; see 15 U.S.C. §1052(d).  However, a mark in a prior-filed
`pending application may present a bar to registration of applicant’s mark.
`
`SUMMARY OF ISSUES:
`
`Prior-Filed Pending Application
`Sections 1 and 45 Refusal – Mark Not Shown With Identified Services
`Section 2(b) Refusal – Use of the Flag of the United States
`Amended Mark Description Required
`
`PRIOR-FILED PENDING APPLICATION
`
`The filing date of pending U.S. Application Serial No. 88031976 precedes applicant’s filing date.  See attached referenced application.  If the
`mark in the referenced application registers, applicant’s mark may be refused registration under Trademark Act Section 2(d) because of a
`likelihood of confusion between the two marks.  See 15 U.S.C. §1052(d); 37 C.F.R. §2.83; TMEP §§1208 et seq.  Therefore, upon receipt of
`applicant’s response to this Office action, action on this application may be suspended pending final disposition of the earlier-filed referenced
`application.
`
`In response to this Office action, applicant may present arguments in support of registration by addressing the issue of the potential conflict
`between applicant’s mark and the mark in the referenced application.  Applicant’s election not to submit arguments at this time in no way limits
`applicant’s right to address this issue later if a refusal under Section 2(d) issues.
`
`Applicant should note the following additional ground for refusal.
`
`SECTIONS 1 AND 45 REFUSAL – SPECIMEN DOES NOT SHOW USE WITH CLASS 36
`
`Registration is refused because the specimen does not show the applied-for mark in use in commerce in connection with any of the services
`
`  
` 
`  
` 
` 
` 
` 
` 
` 
` 
` 
` 
`

`

`specified in International Class 36 in the application or amendment to allege use.  Trademark Act Sections 1 and 45, 15 U.S.C. §§1051, 1127; 37
`C.F.R. §§2.34(a)(1)(iv), 2.56(a); In re Keep A Breast Found., 123 USPQ2d 1869, 1876-79 (TTAB 2017); In re Graystone Consulting Assocs.,
`
`Inc., 115 USPQ2d 2035, 2037-38 (TTAB 2015); TMEP §§904, 904.07(a), 1301.04(d), (g)(i).  
`
`Specifically, the attached specimen contains six individual items, none of which makes an association between the various charitable services for
`first responders provided for in the applicant’s identification.   The first page of the specimen is an excerpt from a Facebook page, which outlines
`a birthday fundraiser.  Applicant’s applied-for mark appears in the chat screen, which only establishes that the owner of the account carries the
`drawing of the mark as his or her Facebook picture.  The second through fifth images are the mark used as a ornamentation on T-shirts.  Again,
`
`these images do not make a direct connection between the applied-for mark and any charitable services.  
`
`An application based on Trademark Act Section 1(a) must include a specimen showing the applied-for mark in use in commerce for each
`international class of services identified in the application or amendment to allege use.  15 U.S.C. §1051(a)(1); 37 C.F.R. §§2.34(a)(1)(iv),
`
`2.56(a); TMEP §§904, 904.07(a).  
`
`Examples of specimens for services include advertising and marketing materials, brochures, photographs of business signage and billboards, and
`webpages that show the mark used in the actual sale, rendering, or advertising of the services.  See TMEP §1301.04(a), (h)(iv)(C).  Specimens
`comprising advertising and promotional materials must show a direct association between the mark and the services.  TMEP §1301.04(f)(ii).
`
`Applicant may respond to this refusal by satisfying one of the following for each applicable international class:
`
`(1)      
`
`Submit a different specimen (a verified “substitute” specimen ) that (a) was in actual use in commerce at least as early as the filing
`date of the application or prior to the filing of an amendment to allege use and (b) shows the mark in actual use in commerce for
`the goods and/or services identified in the application or amendment to allege use.  A “verified substitute specimen” is a
`specimen that is accompanied by the following statement made in a signed affidavit or supported by a declaration under 37 C.F.R.
`§2.20:  “The substitute (or new, or originally submitted, if appropriate) specimen(s) was/were in use in commerce at least as early
`as the filing date of the application or prior to the filing of the amendment to allege use.”   The substitute specimen cannot be
`accepted without this statement.
`
`(2)      
`
`Amend the filing basis to intent to use under Section 1(b), for which no specimen is required.  This option will later necessitate
`additional fee(s) and filing requirements such as providing a specimen.
`
`For an overview of both response options referenced above and instructions on how to satisfy either option online using the Trademark Electronic
`Application System (TEAS) form, please go to http://www.uspto.gov/trademarks/law/specimen.jsp.
`
`Applicant should note the following additional ground for refusal.
`
`SECTION 2(b) REFUSAL – USE OF THE FLAG OF THE UNITED STATES
`
`Registration is refused because the applied-for mark includes an image of the flag of the United States of America.  Trademark Act Section 2(b),
`15 U.S.C. §1052(b); see TMEP §1204.  Trademark Act Section 2(b) bars registration of marks that include the flag, coat of arms, or other
`insignia of the United States, any state or municipality of the United States, or any foreign nation.  TMEP §1204.
`
`The attached evidence from Britannica.com shows the flag from the United States.  The applied-for mark includes this particular designation. 
`
`Thus, the applied-for mark includes the actual flag of the United States, in violation of Section 2(b).  
`
`Trademark Act Section 2(b) is an absolute bar to registration on the Principal and Supplemental Registers.  Trademark Act Sections 2(b) and
`23(a), (c), 15 U.S.C. §§1052(b), 1091(a), (c); see TMEP §§1204, 1204.04(a).
`
`Although applicant’s mark has been refused registration, applicant may respond to the refusal(s) by submitting evidence and arguments in
`support of registration.  However, if applicant responds to the refusal(s), applicant must also respond to the requirement(s) set forth below.
`
` 
` 
` 
` 
` 
` 
` 
` 
` 
` 
`

`

`AMENDED MARK DESCRIPTION REQUIRED
`
`Although applicant submitted a drawing showing the mark in color with a color claim, applicant did not provide the required description that
`specifies where each color appears in the literal and design elements in the mark.  See 37 C.F.R. §§2.37, 2.52(b)(1); TMEP §807.07(a)-(a)(ii). 
`
`Therefore, applicant must provide this description.  See TMEP §807.07(a)(ii).  
`
`Generic color names must be used to describe the colors in the mark, e.g., red, yellow, blue.  TMEP §807.07(a)(i)-(ii).   If black, white, and/or
`gray represent background, outlining, shading, and/or transparent areas and are not part of the mark, applicant must so specify in the description. 
`See TMEP §807.07(d).
`
`The following description is suggested, if accurate (amendments in bold italics):  “The mark consists of the phrase "HELPING THOSE WHO
`SERVE US" located above an American Flag with alternating black and white stripes with the top and bottom stripes being black, the eighth
`stripe being blue, the ninth stripe being red, the upper left having white stars on a black background, and stylized white outlines of a police
`officer with a black badge to the left of a firefighter holding an axe and pickaxe superimposed over the flag.”
`
`Response guidelines.  For this application to proceed, applicant must explicitly address each refusal and/or requirement in this Office action.  For
`a refusal, applicant may provide written arguments and evidence against the refusal, and may have other response options if specified above.  For
`a requirement, applicant should set forth the changes or statements.  Please see “ Responding to Office Actions” and the informational video
`“Response to Office Action ” for more information and tips on responding.
`
`Please call or email the assigned trademark examining attorney with questions about this Office action.  Although the trademark examining
`attorney cannot provide legal advice or statements about applicant’s rights, the trademark examining attorney can provide applicant with
`additional explanation about the refusal(s) and/or requirement(s) in this Office action.  See TMEP §§705.02, 709.06.  Although the USPTO does
`not accept emails as responses to Office actions, emails can be used for informal communications and will be included in the application record. 
`
`See 37 C.F.R. §§2.62(c), 2.191; TMEP §§304.01-.02, 709.04-.05.  
`
`TEAS PLUS OR TEAS REDUCED FEE (TEAS RF) APPLICANTS – TO MAINTAIN LOWER FEE, ADDITIONAL
`REQUIREMENTS MUST BE MET, INCLUDING SUBMITTING DOCUMENTS ONLINE:  Applicants who filed their application online
`using the lower-fee TEAS Plus or TEAS RF application form must (1) file certain documents online using TEAS, including responses to Office
`actions (see TMEP §§819.02(b), 820.02(b) for a complete list of these documents); (2) maintain a valid e-mail correspondence address; and (3)
`agree to receive correspondence from the USPTO by e-mail throughout the prosecution of the application.  See 37 C.F.R. §§2.22(b), 2.23(b);
`TMEP §§819, 820.  TEAS Plus or TEAS RF applicants who do not meet these requirements must submit an additional processing fee of $125
`per class of goods and/or services.  37 C.F.R. §§2.6(a)(1)(v), 2.22(c), 2.23(c); TMEP §§819.04, 820.04.  However, in certain situations, TEAS
`Plus or TEAS RF applicants may respond to an Office action by authorizing an examiner’s amendment by telephone or e-mail without incurring
`
`this additional fee.     
`
`/Joseph P. McCarthy/
`
`Joseph P. McCarthy
`
`Trademark Examining Attorney
`
`Law Office 127
`
`(571) 272-0458
`
`joseph.mccarthy@uspto.gov
`
`TO RESPOND TO THIS LETTER:   Go to http://www.uspto.gov/trademarks/teas/response_forms.jsp.   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. 
`For technical assistance with online forms, e-mail TEAS@uspto.gov.  For questions about the Office action itself, please contact the assigned
`trademark examining attorney.  E-mail communications will not be accepted as responses to Office actions; therefore, do not respond to
`this Office action by e-mail.
`
` 
` 
` 
` 
` 
` 
` 
`

`

`All informal e-mail communications relevant to this application will be placed in the official application record.
`
`WHO MUST SIGN THE RESPONSE:  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).  If an applicant is represented by an attorney, the attorney must sign the
`
`response.  
`
`PERIODICALLY CHECK THE STATUS OF THE APPLICATION:   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/.   Please keep a copy of the TSDR status screen.   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.   For more information on checking
`status, see http://www.uspto.gov/trademarks/process/status/.
`
`TO UPDATE CORRESPONDENCE/E-MAIL ADDRESS:  Use the TEAS form at http://www.uspto.gov/trademarks/teas/correspondence.jsp.
`
` 
` 
`  
`

`

`Pfint:Jun17,2fl19
`
`880319T6
`
`DESIGN MARK
`
`serial Number
`88031916
`
`Status
`REVIVED — AWAITING FURTHER ACTION
`
`Word Mark
`HELPING THOSE WHO SERVED FIRST!
`
`Standard Character Mark
`Yes
`
`Type of Mark
`SERVICE MARK
`
`Register
`PRINCIPAL
`
`Mark Drawing Code
`[4]
`STANDARD CHARACTER MARK
`
`Owner
`Veterans Accession House CORPORATION CALIFORNIA 198 W 9TH ST PITTSEURG
`CALIFORNIA 94565
`
`Goodsfiewices
`
`G & S: Housing
`100 101 102.
`US
`IC 036.
`Class Status -- ACTIVE.
`services, namely, rental Of student housing: Providing financial
`assistance for student veterans; Real estate rental servicesIr namelylIr
`
`rental Of residential housing. First Use: 2018f04f20. First Use In
`Commerce: 2618f04f20.
`
`Filing Date
`EOIBHOIHIO
`
`Examining Attorneyr
`LEE-RICHARDSON,ERITTAN
`
`Attorney of Record
`Alexander Jones
`
`

`

`Helping those who served
`first!
`
`

`

`nttbs //vwvw britennice corn/tooic/rlenforetheeUnitedeSteteseorrAmeri0e
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`national flag consisting ot while stars (50 since July 4, 1960) on a blue canton with a field nr 13 alternating stripes 7 red and 6 white The 50 stars stand For the 50 states of the union and the 13 stripes stand for
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`or the Union Flag)—was heisted on a towering TG-toot (23-metre) liberty pole at Prospect Hill in Charlestown (now in Somerwlle), Massachusetts, on January 1. 1776. it was raised at the
`behest of Gen. George Washington. whose headquarters were nearby. The flag had 13 hon'zontal stripes (probably of red and vmlte or of red. white, and blue) and. in the canton, the first
`version of the British Union Flag (Union Jack). As the flag ot'the Continental Army, it flew at forts and on naval vessels. Another poputar earty flag. that ofthe 1765 Sons of Liberty, had only
`
`- Knight v. Board of Regents of the
`University of the State of New York
`Betsy Ross
`Great Seal nt the United State:
`
` 51
`
`

`

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`nine red and white stripes. Various versions of ‘Don‘t Tread on Me' coiled-rattlesnake flags appeared on many Hath-century American colonial banners, including several flown by military
`units during the Revolutionary War. The version carried by the Minutemen of Culpeper County, \firginia, for example, included not only the rattlesnake and the "Don’t Tread on Me” motto
`but also Virginia patriot Patrick Henry's famous words "Liberty or Death.‘
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`The first official national flag, formally approved by the Continental Congress on June 14, 1777, was the Stars and Stripes. That first Flag Resolution read. in toto, "Resolved, that the flag of
`the United States be thirteen stripes. alternate red and white: lhatthe union be thirteen stars. white in a blue field representing a new constellation.” The layout of the stars was lefi
`
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`mos //vwvw brItannIca corn/tooIc/tlaoeofetneeunltedeStateseoflAmerIca
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`06/17/2019 02 04 03 PM
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`undefined, and many patterns were used by flag makers. The designer of the flag—most likely Congressman Francis Hopkinson. a signer ofthe Declaration of lndegendence from
`Philadelphia—may have had a ring of stars in mind to symbolize the new constellation. Today that pattern is populany known as the ‘Betsy Ross fi_ag." although the widely circulated story
`that she made the first Stars and Stripes and came up with the ring pattern is unsubstantiated. Rows of stars (4—54 or 3-2-3—2—3) were common, but many other variations also existed. The
`new Stars and Stripes termed part ofthe military colours carried on September 11. 1777. at the Battle ofthe Brandywine, perhaps its first such use.
`
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`
`The Stars and Stripes changed on May 1. 1795, when Congress enacted the second Flag Resolution. which mandated that new stars and stripes be added to the flag when new states
`were admitted to the Union. The first two new states were Vermont (1791) and Kentucky (1792). (One such flag was the 1,260—square-footl117-square-metre] ”star-Spangled Banner."
`made by Mary Pickersgill, that Francis Scott Key saw at Fort McHeng in September 1814. which inspired him to write the patriotic poem that later supplied the lyrics ofthe national anthem.)
`In 1818, after five more states had been admitted, Congress enacted
`.in 13, the number of
`
`stars should always match the number 01 states. and any new star shI
`since. In all. from 1777 to
`1960 (alter the admission at Hawaii in 1959), there were 27 versions 0! me nag—29 InvoIVIng cnanges In lne stars only. An execu'uve order slgned Dy Pres. WIlliam Howard Taft on October
`29, 1912, standardized lor the first time the proportions and relative sizes of the elements of the flag; in 1934 the exact shades of colour were standardized.
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`Seal ot the United States, suggested the tollowing symbolism: ‘White signifies purity and innocence, Red, hardiness 8. valour. and Blue...slgnifies Vlgllence [sic]. perseverence [sic] 8.
`justice.“ As with many other national llags, the Stars and Stripes has long been a focus of patriotic sentiment. Since 1892, millions of children have recited the Pledge of Allegiance to the
`fig at the start at each school day. and the lyrics ot the national anthem are also concerned with the flag. After the U.S. Sugreme Court ruled in 1989 that all flag desecration laws were
`unconstitutional, some vetemns' and patriotic groups pressured legislators to adopt laws or a constitutional amendment prohibiting ‘llag desecration. Such legislation has been opposed on
`the grounds that it would infringe on the constitutionally guaranteed First Amendment freedom of expression.
`
`During the American Civil War, the Confederate States oiAmerica began to use its first tlag, the Stars and Bars, on March 5, 1861. Soon after. the first Confederate Battle Flag was also
`"own. The design 0! the Stars and Bars varied over the following two years. On May 1, 1863, the Confederacy adopted its first official national flag. often called the Stainless Banner. A
`modification of that design was adopted on March 4. 1365, about a month before the end of the war. In the latter part ofthe 20th century. many groups in the South chalienged the practice
`0! flying the Contedemte Battle Flag on public buildings, including some state capitals. Proponents of the tradition argued that the flag recalled Southern heritage and wartime sacrifice,
`whereas opponents saw it as a symbol oi racism and slavery. inappropriate tor official display.
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`nuns //vwvw britannloa com/tooic/flaqeofetheeUnitedeStateseoflAmerica 06/17/2019 02 04 03 PM
`
`
`
`Collier}erale Ballle Flag
`The “Soulhem C1055" verslon of Ihe Confederate Eatlle Flag
`
`
`
`Stainless Banner
`The Stainlesg Banner. hm omual nahanal llaq oi the Canfedemle Siaies oi Amenca
`
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`Marc Leepson
`
`
`LEARN MORE in these related Britannica articles:
`
`lllll
`
`Beasy Russ
`run only made me first Stars and Sln'pesm George Washington’s behest hm also helped design n, Canny based his papei on stones IIIEI he had beam from family members, along will his own
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`Francis Hankinson
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`06/17/2019 02 04 03 PM
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`

`To:
`
`Subject:
`
`Sent:
`
`Sent As:
`
`Attachments:
`
`Dive Guardians, Inc. (attorneys@brandxperts.com)
`
`U.S. TRADEMARK APPLICATION NO. 88368475 - HELPING THOSE WHO SERVE US - DG-
`HTWSU-1w
`
`6/17/2019 3:24:53 PM
`
`ECOM127@USPTO.GOV
`
`UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)
`
`IMPORTANT NOTICE REGARDING YOUR
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