To:
`
`Subject:
`
`Sent:
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`Sent As:
`
`Attachments:
`
`Dazzle Up, LLC (dsar@brookspierce.com)
`
`U.S. Trademark Application Serial No. 88436944 - SIMPLY SOUTHERN - N/A
`
`July 11, 2019 01:07:06 PM
`
`ecom108@uspto.gov
`
`Attachment - 1
`Attachment - 2
`Attachment - 3
`Attachment - 4
`
`UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)
`OFFICE ACTION (OFFICIAL LETTER) ABOUT APPLICANT’S TRADEMARK APPLICATION
`
`*88436944*
`
`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.   88436944
`
`           
`
`MARK: SIMPLY
`SOUTHERN
`
`CORRESPONDENT
`ADDRESS:
`  
`       DAVID W. SAR
`  
`       BROOKS, PIERCE,
`MCLENDON,
`HUMPHREY & LEO
`         P.O. BOX 26000
`           GREENSBORO, NC
`27420
`    
`   
`APPLICANT: Dazzle
`Up, LLC
`
`    
`
`CORRESPONDENT’S
`REFERENCE/DOCKET
`
`   
`
`NO:       
`
`  N/A
`CORRESPONDENT E-
`
`MAIL ADDRESS:       
`
`dsar@brookspierce.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: July 11, 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
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`The trademark examining attorney has searched the Office’s database of registered and pending marks and has found no conflicting marks that
`would bar registration under Trademark Act Section 2(d).  TMEP §704.02; see 15 U.S.C. §1052(d).
`
`SUMMARY OF ISSUES:
`Section 2(b) Refusal – Flag of the United States of America
`Mark Description Required
`
`SECTION 2(b) REFUSAL – FLAG OF THE UNITED STATES OF AMERICA
`
`Registration is refused because the applied-for mark includes a simulation 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 simulations of 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, 1204.01(a).
`
`  A
`
` simulation refers to “something that gives the appearance or effect or has the characteristics of an original item.”   In re Family Emergency
`Room LLC, 121 USPQ2d 1886, 1887 (TTAB 2017) (quoting In re Advance Indus. Sec., Inc., 194 USPQ 344, 346 (TTAB 1977)); TMEP §1204. 
`Whether the relevant matter in the mark is a simulation is determined by a visual comparison of the mark and the actual flag, coat of arms, or
`other insignia in question.  See In re Family Emergency Room LLC, 121 USPQ2d at 1887 (citing In re Advance Indus. Sec., Inc., 194 USPQ at
`
`346); TMEP §1204.  
`
`When comparing the mark and the actual flag, coat of arms, or other insignia, the focus is on the relevant purchasers’ general recollection of the
`flag, coat of arms, or other insignia, “without a careful analysis and side-by-side comparison.”   In re Family Emergency Room LLC, 121
`USPQ2d at 1888 (quoting In re Advance Indus. Sec., Inc., 194 USPQ at 346).  The public should be considered to retain only a general or overall,
`rather than specific, recollection of the various elements or characteristics of design marks.  See In re Advance Indus. Sec., Inc., 194 USPQ at
`
`346.  
`
`The following factors are considered when determining whether a design in a mark would be perceived as a flag, coat of arms, or other insignia
`
`of the United States, any state or municipality of the United States, or any foreign nation:  
`
`(1)           
`
`The colors, if any, that appear in the design;
`
`(2)           
`
`The presentation of the mark, such as any stylization of the design and its relationship to other elements in the mark;
`
`(3)           
`
`The presence of any words or other designs on the drawing; and
`
`(4)      
`
`The use of the mark on the specimen(s), if one is provided, or in the record.  
`TMEP §1204.01(a) (citing In re Family Emergency Room LLC, 121 USPQ2d at 1888).  
`
`The attached evidence from Britannica shows an actual flag from the United States of America.  The applied-for mark is nearly identical to the
`U.S. flag, as it merely swaps the color black for the white portions of the flag, and the color white for the red and blue portions of the flag. The
`applied-for mark is also in the same rectangular shape as the U.S. flag, and includes additional wording that is below and separable from the
`black and white flag.
`
`The public would perceive the design in the mark as the flag of the United States of America because the applied-for mark is merely a white and
`black version of the U.S. flag, there is no stylization of the design, and the additional wording is separable from the flag design.
`
`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. Applicant must address the following requirement.
`
`MARK DESCRIPTION REQUIRED
`
`Applicant must submit an amended description of the mark because the current one is incomplete and does not describe all the significant aspects
`of the mark.  37 C.F.R. §2.37; see TMEP §§808.01, 808.02.  Descriptions must be accurate and identify all the literal and design elements in the
`mark.  See 37 C.F.R. §2.37; TMEP §§808 et seq. 
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`The following description is suggested, if accurate:  The mark consists of a stylized, American flag in black and white with alternating
`white and black horizontal bars, black stars, a white background for the stars, and the white wording “SIMPLY SOUTHERN” below
`the flag, all surrounded by a black, rectangular border.
`
`RESPONSE GUIDELINES
`
`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.     
`
`/Nathaniel Pettican/
`Nathaniel Pettican
`Examining Attorney
`Law Office 108
`(571) 272-1087
`nathaniel.pettican@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.
`
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`ht‘tbs //vwvw brltannroa corn/toolc/rladeoretheeUnltedeStateseorAmerlca
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`07/0l/20l9 0l l6 23 PM
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`ENCYCLOPEDIA BRITANNICA
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`national flag consisting or white stars (50 since July 4, 1960) on a blue canton with a field or 13 aitemauttg stripes 7 red and 6 white The 50 stars stand rat the 50 slates of the union and the 13 stripes stand for
`the original 13 states The flags Widthrtorlength ratio is 10 to 19
`
`
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`After the American Revolution began, the first, unofficial national flag—known as the Continental Colours (or, sometimes, as the Grand Union Flag, the Cambridge Ftag, the Somerville Flag,
`or the Union Flag)—was hoisted on a towering 76-1th (ZS-metre) liberty pole at Prospect Hill in Charlestown (now in Somewllle), Massachusetts, on January 1. 1776: lt was raised at the
`behest of Gen. George Washington. whose headquarters were nearby. The flag had 13 horizontal stripes (probably of red and Write 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 popular early flag. that ofthe 1765 Sons of Liberty. had only
`nine red and white stripes. Various versions of “Don't Tread on Me" coiled—rattlesnake flags appeared on many 18th—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 ratltesnake and the “Don‘t Tread on Me" motto
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`The Ilrst ornclal national flag. formally approved by the Continental Congress on June 14. 1777. was the Stars and sti1pes. That first Flag Resolution read. In toto. “Resolved. that the flag or
`the United States be thirteen stripes, alternate red and white: that the union be thirteen stars. white in a blue field representing a new constellation." The layout of the stars was lefl.
`undefined, and many patterns were used by flag makers. The designer of the flag—most likely Congressman Francis Hopkinson. a signer ofthe Declaration of Indegendence from
`Philadelphia—may have had a ring of stars in mind to symbolize the new constellation. Today that pattern is populafly known as the “Betsy Ross fig," 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 (4-5-4 or 3-2-3—2—3) were common. but many other variations also existed. The
`new Stars and Stripes termed part of the military colours carried on September 11. 1777, at the Battte ofthe Brandywine. perhaps its first such use.
`
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`07/01/2019 01 16 23 PM
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`FEATURED ON BRtTANNI CA
`
`oEMvsrlFlED I HISTORY
`Why Do Americans Celebrate
`Independence Day WILII Fireworks?
`
`The Stars and Stripes changed on May 1. 1795, when Congress enacted the second Flag Resolution. which mandated that new stars and stripes he 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-foot[117-square-metrel "Star—Spangled Banner."
`made by Mary Pickersgill, that Francis Scott Key saw at Fort McHenLy 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 the third and last Flag Resolution, requiring that henceforth the number of stn'pes should remain 13, the number of
`stars should always match the number of states, and any new star should be added on the July 4 following a state’s admission. This has been the system ever since. In all, from 1777 to
`
`1961! (alter the admission at Hawaii in 1959), there wereI 27 versions of the flag—25 involving changes in the stars only. An executive order signed by Pres. William Howard Tafl on October
`23, 1912, standardized tor 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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`There is no official assignment of meaning or symbolism to the colours of the flag. However, Charles Thomson. secretary of the Continental Congress. in describing the proposed Great
`Seal of the United Stata. suggested the following symbolism: ‘White signifies purity and innocence. Red. hardiness 8t valour. and Blue.. .signifies vigilence [sic]. perseverence [sic] 8.
`justice." As with many other national flags. 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
`$1 at the start of each school day. and the lyrics of 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 t'lag desecration. Such legislation has been opposed on
`the grounds that it would infringe on the constitutionally guaranteed First Amendment freedom of expression.
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`During the American Civil War. the Confederate States of America began to use its first flag. the Stars and Bars. on March 5. 1861. Soon after. the first Confederate Battle Flag was also
`flown. The design o! the Stars and Bars varied overthe (allowing two years. On May 1, 1863, the Confederacy adopted its first official national flag. often called the Stainless Banner. A
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`

`To:
`
`Subject:
`
`Sent:
`
`Sent As:
`
`Attachments:
`
`Dazzle Up, LLC (dsar@brookspierce.com)
`
`U.S. Trademark Application Serial No. 88436944 - SIMPLY SOUTHERN - N/A
`
`July 11, 2019 01:07:07 PM
`
`ecom108@uspto.gov
`
`United States Patent and Trademark Office (USPTO)
`
`USPTO OFFICIAL NOTICE
`
`Office Action (Official Letter) has issued
`on July 11, 2019 for
`U.S. Trademark Application Serial No. 88436944
`
`Your trademark application has been reviewed by a trademark examining attorney.  As part of that review, the assigned attorney has issued an
`official letter that you must respond to by the specified deadline or your application will be abandoned.  Please follow the steps below.
`
`(1)  Read the official letter.
`
`(2)   Direct questions about the contents of the Office action to the assigned attorney below.   
`
`/Nathaniel Pettican/
`Nathaniel Pettican
`Examining Attorney
`Law Office 108
`(571) 272-1087
`nathaniel.pettican@uspto.gov
`
`Direct questions about navigating USPTO electronic forms, the USPTO website, the application process, the status of your application, and/or
`whether there are outstanding deadlines or documents related to your file to the Trademark Assistance Center (TAC).
`
`(3)  Respond within 6 months (or earlier, if required in the Office action) from July 11, 2019, using the Trademark Electronic Application
`System (TEAS).  The response must be received by the USPTO before midnight Eastern Time of the last day of the response period.  See the
`Office action for more information about how to respond.
`
`GENERAL GUIDANCE
`·       Check the status of your application periodically in the Trademark Status & Document Retrieval (TSDR) database to avoid missing critical
`deadlines.
`
`·       Update your correspondence email address, if needed, to ensure you receive important USPTO notices about your application.
`
`·       Beware of misleading notices sent by private companies about your application.  Private companies not associated with the USPTO use
`public information available in trademark registrations to mail and email trademark-related offers and notices – most of which require fees.  
`All official USPTO correspondence will only be emailed from the domain “@uspto.gov.”
`
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