To:
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`Subject:
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`Sent:
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`Sent As:
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`Attachments:
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`Fecal Ferry LLC (matthew.patterson@optimalipstrategies.com)
`
`U.S. Trademark Application Serial No. 88633998 - FECAL FERRY - FF001TM
`
`January 10, 2020 09:48:16 AM
`
`ecom101@uspto.gov
`
`Attachment - 1
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`United States Patent and Trademark Office (USPTO)
`
`Office Action (Official Letter) About Applicant’s Trademark Application
`
`U.S. Application Serial No. 88633998
`
`     
`
`Mark:   FECAL FERRY
`
` 
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`

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`Correspondence Address: 
`MATTHEW J PATTERSON
`
`OPTIMAL IP STRATEGIES
`
`15 CHAPMAN DRIVE
`
`GLASTONBURY, CT 06033
`
`    
`   
`
`Applicant:   Fecal Ferry LLC
`
`    
`
`Reference/Docket No. FF001TM
`
`Correspondence Email Address:  
`
`matthew.patterson@optimalipstrategies.com
`
`NONFINAL OFFICE ACTION
`
`The USPTO must receive applicant’s response to this letter within six months of the issue date below or the application will be abandoned. 
`Respond using the Trademark Electronic Application System (TEAS).   A link to the appropriate TEAS response form appears at the end of this
`
`Office action.   
`
`Issue date:  January 10, 2020
`
`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.   
`How to respond.   Click to file a response to this nonfinal Office action.     
`
`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 Results
`
`The Office records have been searched and there are no similar registered or pending marks that would bar registration under Trademark Act
`Section 2(d), 15 U.S.C. §1052(d). TMEP §704.02.
`
`Section 2(b) Flag, Coat of Arms, or Other Insignia Refusal
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`Registration is refused because the applied-for mark includes a United States flag.  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 web pages taken from the Google search engine shows the flag from The United States of America.  The applied-for
`mark includes this particular designation.  Thus, the applied-for mark includes the actual flag of the United States of America, in violation of
`
`Section 2(b).  
`
`See
`
`https://en.wikipedia.org/wiki/Flag_of_the_United_States
`
`https://www.britannica.com/topic/flag-of-the-United-States-of-America
`
`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).
`
`Amendments Required to Overcome Refusal
`
`In order to overcome the refusal, applicant must take the American Flag out of the drawing and description of the mark.
`
`First, applicant must file a new drawing deleting the American Flag.
`
`A “special form drawing” of a mark includes or consists of special characteristics such as elements of design or color, style(s) of lettering, and
`unusual symbols and forms of punctuation.  TMEP §807.04(a).  The requirements for a special form drawing are as follows:
`
`(1)       
`
`Shows the mark either in black on a white background, if color is not a feature of the mark, or in color on a white background, if
`color is a feature of the mark.
`
`(2)       
`
`Is of sufficient quality that will reproduce well. 
`
`(3)       
`
`Includes in the application a description of all literal and design elements in the mark.  
`
`37 C.F.R. §§2.37, 2.52(b), 2.53(b)-(c), 2.54(e); see TMEP §§807.04-.04(a), 808.01-.02.
`
`For more information about special form drawings and drawings in general, and instructions on how to submit a drawing, see the Drawing
`webpage.
`
`Second, applicant must amend the description of the mark as follows:
`
`“The mark consists of the words FECAL FERRY in a stylized lettering form resembling the outline of a ship with wisps of smoke emanating
`from the top of the "L".    The stylized lettering is positioned on top of a stylized rendering of water.”
`
`If applicant responds to the refusal(s), applicant must also respond to the requirement(s) set forth below.
`
`Identification of Services
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`The identification of services is indefinite and must be clarified because it identified services falling into more than one international class.   See
`
`37 C.F.R. §2.32(a)(6); TMEP §1402.01.   
`Applicant may substitute the following wording, if accurate:   
`
`“Installing septic fields; Installing septic tanks; Maintaining septic systems; Repairing septic systems; Septic tank pumping and cleaning,” in
`Class 37.
`
`“Providing training in the fields of septic system installation and maintenance,” in Class 41.
`
`Scope Advisory
`
`Applicant’s goods and/or services may be clarified or limited, but may not be expanded beyond those originally itemized in the application or as
`acceptably amended.  See 37 C.F.R. §2.71(a); TMEP §1402.06.  Applicant may clarify or limit the identification by inserting qualifying language
`or deleting items to result in a more specific identification; however, applicant may not substitute different goods and/or services or add goods
`and/or services not found or encompassed by those in the original application or as acceptably amended.  See TMEP §1402.06(a)-(b).  The scope
`of the goods and/or services sets the outer limit for any changes to the identification and is generally determined by the ordinary meaning of the
`wording in the identification.  TMEP §§1402.06(b), 1402.07(a)-(b).  Any acceptable changes to the goods and/or services will further limitscope,
`and once goods and/or services are deleted, they are not permitted to be reinserted.  TMEP §1402.07(e).
`
`For assistance with identifying and classifying goods and services in trademark applications, please see the USPTO’s online searchable U.S.
`Acceptable Identification of Goods and Services Manual.  See TMEP §1402.04.
`
`Multi-Class Application Requirements
`
`The application references goods and/or services based on use in commerce in more than one international class; therefore, applicant must satisfy
`all the requirements below for each international class:
`
`(1)       
`
`(2)       
`
`(3)       
`
`(4)       
`
`List the goods and/or services by their international class number in consecutive numerical order, starting with the lowest
`numbered class (for example, International Class 3: perfume; International Class 18: cosmetic bags sold empty).
`
`Submit a filing fee for each international class not covered by the fee(s) already paid (view the USPTO’s current fee schedule).  
`Specifically, the application identifies goods and/or services based on use in commerce that are classified in at least 2 classes;
`however, applicant submitted a fee(s) sufficient for only 1 class(es).   Applicant must either (a) submit the filing fees for the classes not
`covered by the submitted fees or (b) restrict the application to the number of classes covered by the fees already paid.
`
`Submit verified dates of first use of the mark anywhere and in commerce for each international class.   See more information
`about verified dates of use.
`
`Submit a specimen for each international class.   The current specimen is acceptable for class(es) 37; and applicant needs a
`specimen for class(es) 41.   See more information about specimens.
`
`Examples of specimens for goods include tags, labels, instruction manuals, containers, and photographs that show the mark on the
`actual goods or packaging, or displays associated with the actual goods at their point of sale.   Webpages may also be specimens for
`
`goods when they include a picture or textual description of the goods associated with the mark and the means to order the goods.              
`
`Examples of specimens for services include advertising and marketing materials, brochures, photographs of business signage and
`billboards, and website printouts that show the mark used in the actual sale, rendering, or advertising of the services.  
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`(5)       
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`Submit a verified statement that “ The specimen was in use in commerce on or in connection with the goods and/or services
`listed in the application at least as early as the filing date of the application.”   See more information about verification.
`
`See 15 U.S.C. §§1051(a), 1112; 37 C.F.R. §§2.32(a)(6)-(7), 2.34(a)(1), 2.86(a); TMEP §§904, 1403.01, 1403.02(c).
`
`See an overview of the requirements for a Section 1(a) multiple-class application and how to satisfy the requirements online using the Trademark
`Electronic Application System (TEAS) form.
`
`Disclaimer
`
`Applicant must provide a disclaimer of the unregistrable part(s) of the applied-for mark even though the mark as a whole appears to be
`registrable.  See 15 U.S.C. §1056(a); TMEP §§1213, 1213.03(a).  A disclaimer of an unregistrable part of a mark will not affect the mark’s
`appearance.  See Schwarzkopf v. John H. Breck, Inc., 340 F.2d 978, 979-80, 144 USPQ 433, 433 (C.C.P.A. 1965).
`
`In this case, applicant must disclaim the wording “FECAL” because it is not inherently distinctive.  These unregistrable term(s) at best are
`merely descriptive of an ingredient, quality, characteristic, function, feature, purpose, or use of applicant’s goods and/or services.  See 15 U.S.C.
`§1052(e)(1); DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 1251, 103 USPQ2d 1753, 1755 (Fed. Cir. 2012); TMEP
`
`§§1213, 1213.03(a).  
`
`Specifically, fecal substances are part of the septic fields that applicant services, and as such, the wording must be disclaimed.
`
`In support of the disclaimer, the examining attorney submits and relies upon the attached online dictionary definitions wherein “fecal” means
`“of, relating to, or constituting feces.”
`
`See
`
`https://www.merriam-webster.com/dictionary/fecal
`
`Applicant may respond to this issue by submitting a disclaimer in the following format:  
`No claim is made to the exclusive right to use “FECAL” apart from the mark as shown.   
`
`For an overview of disclaimers and instructions on how to satisfy this issue using the Trademark Electronic Application System (TEAS), see the
`
`Disclaimer webpage.  
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`Response
`
`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.
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`/efalk/
`
`Erin Falk
`
`Trademark Examining Attorney
`
`Law Office 101
`
`571-272-1110
`
`erin.falk@uspto.gov
`
`RESPONSE GUIDANCE
`Missing the response deadline to this letter will cause the application to abandon.   A response or notice of appeal must be received by
`the USPTO before midnight Eastern Time of the last day of the response period.   TEAS and ESTTA maintenance or unforeseen
`
`circumstances could affect an applicant’s ability to timely respond.   
`
`Responses signed by an unauthorized party are not accepted and can cause the application to abandon.  If applicant does not have an
`attorney, the response must be signed by the individual applicant, all joint applicants, or someone with legal authority to bind a juristic
`applicant.  If applicant has an attorney, the response must be signed by the attorney.
`
`If needed, find contact information for the supervisor of the office or unit listed in the signature block.
`
` 
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`

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`.
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`[2.]
`dated the earliest knuwn example orltris tlag to be 1792 in a painting in John Trumbull,
`Despite the 1777 lesultllion, the eany yeais at American independence featured many «men! flags, Most were individually uafled ratherthan niassploducled While there are many examples or 135m arrangements, some of
`lliose llags included blue sliipesl2m as well as red and Mule deniamm Franklin and John Adams. in a letter dated Odober 3, 1778, lo Ferdinand l oldie Two sicitles. described theAmerican ilag as oonsisiing ol ~13 stripes.
`ailemalely red. while, and blue. a small square III the upper angle. next the llag stall. is a blue held, with 13 while stars, denoting a new Constellation-m John Paul Jones used a variety oi 135ml llags on his u 3 Navy ships
`inoiidirig ihe wettdocumenled 1779 flags orlhe Serapls and tiie Alliance, The Seuois tiag had three rows dfethpuinled stars with sliipes that were red, white, and blue The flag tor the Allrarllx. hnwever, had five mws ofeighte
`painted staiswith 13 red and nitrite 51an5. and the wane Wipes were on the outeredgesm eotri flags were documented by the Dutch governmem in umber 1779. making them two otthe eaniost known llags or 13 stars.”
`Deslnner M Ina fll's‘l stars and slflpes
`Francis Hopkinsori or New Jersey, a naval nag destgner, and a signer oldie Declaration of independence. designed the 1777 flag“ while he was the Chairman ottrie Continental Navy Boards Middle Department sometime
`When his appointment in that posilmn in November 1776 and tire time tiiat me llag resolution was adopted in June 1777 The Navy Board was under the continental Marine committee [3“! Not only did anklnson claim that he
`designed the us ilag, but he also dainied that he designed a llag fortne Li 3, Navy, Hopkinsan was the only person to have rriade such a claim during his own llieiime. when he sent a lellet and several hills to Congress lor iris
`work These daims are documented in the .Inumals orthe Corninerrtal Congress and George Hastings biography ol Hopkinson, l-iopldnson initially wrote a lettertn Cnnglfis, via the Continental Board omeiiale. on May 25,
`17st) 9‘1 In this letter. he asked tor a "Quaner Cask ortire Public vane" as payment lordesigning the u s, tlag, ihe seal for theAdmiralty Board. the seal iorttie Treasury Board, Continental uirrency. tire Great Seal orthe united states. and other devices However, in three
`subsequent bills to congress. t—luplrirrson asked to be paid in cash. but he did not let his u.
`nag fleslgll. instead. tie asked to be paid tor designing the "great Naval Flag orthe untried Slates" in the tiist trill, tire "Naval Flag ollne united states' in the second bill, and '1he
`Naval Flag of ihe States” in the third. along with the other dens Theflag refeiem were genetic tents for the naval ensign that anklnson had designed. that is. a flag dfseven led 51an and six wlllte nnes, The piedomlnanoe dl red stripes maaethe naval rag more
`visible against the sky on a ship at sea By mntrasl. Hoplclnson's nag for the united States had seven white slnpes. and six red ones 7 in reality, six led slnpes laid an a white background "2‘ Hopltinson's sketches have not been round. but we tan make these oohclusinns
`because ankinscn inoorporated dinerent stripe arrangements in the Admiralty (naval) Sml that he designed in the Spring nf 1780 and the Great Seal attire united states that ire proposed at the same time, His Admlralty Seal had seven led strips;pal Mteleas. his
`semrrd LI 5, Seal proposal liad seven white ones,“ Remnants ol Hupkinsorl's LI 5, lhg ol seven white stripes an be round in Ille Great Seal olthe United states and the President's seal ‘3“ When Hopldnson was chakrrian or the Navy Board, his position was like that or
`todays secretary olliie Navy I351 The paymem was not made, however. because other people had oomributed to the desrgnflwl and bemuse it was determined ire had already received a salary as a member or congress WWI This contradicts the legend ollhe Betsy Ross
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`Francis Hupkirlson's nag Iol the
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`flag. which suggeas that she sewed the first Smls and Stripes flag Dy request utthe gotlemmenl in the Spring of 1775mm!
`On to May 1775. a lehertrom the War Board to George Washington stated ttiat there was still no design established fora national standard. on which to base regsnental standards. out also referenced nag requirements given to the board oy General von stenoenJ“! On 3
`September, Richard Peters siiomitted to Washington "Dlzfls ora Slandard" and asked tor his -loeas orthe Plan orthe standard," adding trial the War noaid prerened a design theyviewed as 'a variant torthe Marine Flag - Washington agreed that he preferred "lhe
`standard. with the union and Emblems in the cashier“! The drarts are lost to histoiy. but is Intent to be slrrllal to the first Jack otthe united statesl“l
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`The d
`at the stars and slnpes design has been muddled by a sloty disseminated uy the descendants ot Betsy Ross, The apocryphal story uedits Betsy Ross tar sewtng one uflhe first tlags front a pencil sketch handed to her by George Washington No evidence tor
`this exists either in the diaries or George Washington nnr in the records olthe Continental Congress indeed, nearly a cenhiry passed betoie Ross' giandson, vntlarn Cantny, nist piibticty suggested the story in 1670 "2‘ By her family's own admission, Ross ran an
`upholstery wsinBS, and she had never made anag as or the supposed visit in June 1776 WI Furthermore, her grandson admitted that his own search through the Journals or Congress and other official records tailed to nnd conohoration orhis glandmdlher's story “‘1
`lne tamily or Heoecca Young claimed trial sne sewed tne ntsttlag.“ Young: daughterwas Mary Pchel'Sglll. who made the Slat Spangled Banner Hagm‘” one was assisted by Grade WISHEI’. an Amcan Arnenwn gin atJUSI 13 years old.”
`Later flag ads
`See also: FlagActs (u sJ
`In l79fi, the number or stars and stripes was harmed trom 1a to 15 {ht reflect the etfity otVerrriont and Kentucky as states otthe Union) For a time the flag was not ctianged when subsequent states were admitted, pmhably
`because itwas thought thatthis would cause too much clutter, It was the lismr, 155mm hag that inspired Francis Scott Key lowrite "Detenoe of Fort M'Henry", tattertrnowri as 'The star Spangled Banner‘, which is now the Amerimn
`national anthem, The nag rs cuneritty on display in the exhihition, 'The Starspangled Banner The Flag That inspired the National Amhem" at the Smithsonian institution National Museum or Amerun History in a mastery display
`chamberthat protects the llag willie it Is on View W”
`[in April 4, 1813. aplan was passed by Congress at the suggestion or u s, Naval Captain Samuel C, Reid“! in which the dog was changed ln have 20 stars. with anew starto be added when
`each new state was admitted, hulllle rinnioer orstripre would be reduced to 13 so as to honnrthe onglnal colonies The act specified niat new nag designs should heoorne otndal on the ma
`July 4 (Independence Day) following admission nfone or me new stales, The most reoerit change from 49 stars to so, oociirred in 1950 when the present daign was chosen, alter Hawaii
`gained statehood in August 1959. Betare that, the admission or Alaska in January 1959 prompted the detrut ura Shdnsllved 495ml nag [5"
`Prior to the adoption at the Asstarnag in 1912, there was no otncial anarigernent or the stars in the canton. although the us Army and us Navy used standardized designs Throughout the
`19m century therewas an ahnndanoe nfdtflerent star pallems, rectangularand circular,
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`Ham, Flag
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`On July 4. adult. the Sflestai nag became the version orthe nag in songest use. surpassing the 42mm nag that was used item 1912 to 1959,
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`" arrives in Asia
`"Flower Fl
`ag
`The U S. flag was brought to me city of Canton (Guangzhou) In China In 1784 by the merchant ship Empress ofChina, which amen a cargo of ginseng [52‘ There lt gained the daignatlon
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`FlowerFlag' (Chinese m pinyin huaqi, Cantonese Yale taker), Aooordingtoa pseudonymous aooount nrst piihlished in the Boston Courier and laterretnld oy authorand US naval
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`Oil painting depicting the as
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`otncer George H Preole
`When the thirteen stripes and stars first appeared at Canlon, mucti curiosity was excited among the people News was simulated that a soange ship had arrived trumthe nirtherend orthe world, bearing a hag “as heautihrl
`as a fmver“ Every body went to see the lone tree chueh [rem Fakelsyt'rhrl], or ‘Tkwtterflagship" This name at once established itself In the language, and Alnerim is now Illed the kwa [me kwnh [E32 ; Fairleigh-oh],
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`the "flowerhag muntry‘Land an Amelitzn. kwa Ree kwm yln RE : Famigmkya'nnk'mwer nag counuymarl‘La more ootnplirnemaly daignatlon man mat 01 "red headed namanan'% name first dammed
`upon the Dutch.“”1551
`In the above quote, the Chinese words are wrtltert phonelitzly based on spoken Cantonese, The names given were Common usage tn the nineteenth and earw twentleth :enturia [56‘ Vietnam has narrowed the term tor the United States, as H05 K17 nr REE ("Flower Flag")
`in Vietnamese.
`Chinese nuw refer to the United States as Mélyuo (simplified Chinese §fl lradillonal Chinese: $51Méi at short forMétlijtah (slrnpll‘ited Chinese gorse; traditional Chinese gang, pmnursemanttc matching tTi"Amelia-1n") arid "god" means 'oounnv'. so this name Is
`unheated to metlag However, the "llowerllag' terminology persists in some places my. for example. American Ginseng is railed me! flag ginseng (simplified Chinese m5; tradi