To:
`
`Subject:
`
`Sent:
`Sent As:
`
`Christopher Erickson(trademark@tonkon.com)
`U.S. Trademark Application Serial No. 90845103 - SHOVELMETRICS -
`42744-9007
`April 20, 2022 10:15:59 AM EDT
`tmng.notices@uspto.gov
`
`Attachments
`
`screencapture-www-macmillandictionary-com-dictionary-american-metrics_1-
`16504639175751
`screencapture-www-motionmetrics-com-shovel-metrics-16503819161961
`
`United States Patent and Trademark Office (USPTO)
`Office Action (Official Letter) About Applicant’s Trademark Application
`
`
`
`U.S. Application Serial No.  90845103
`
`Mark:   SHOVELMETRICS
`
`Correspondence Address:  
`Christopher Erickson
`TONKON TORP LLP
`888 SW Fifth Ave., Suite 1600
`Portland OR 97204 UNITED STATES
`
`Applicant:   Motion Metrics International Corp.
`
`Reference/Docket No.  42744-9007
`
`Correspondence Email Address:   trademark@tonkon.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:   April 20, 2022
`
`
`INTRODUCTION
`
`

`

`
`The referenced application has been reviewed by the assigned trademark examining attorney. 
`Applicant must respond timely and completely to the issues below.  15 U.S.C. §1062(b); 37 C.F.R.
`§§2.62(a), 2.65(a); TMEP §§711, 718.03.
`
`SEARCH RESULTS
`
`The trademark examining attorney searched the USPTO database of registered and pending marks and
`found no conflicting marks that would bar registration under Trademark Act Section 2(d).  15 U.S.C.
`§1052(d); TMEP §704.02.
`
`SUMMARY OF ISSUES:
`•
`Section 2(e)(1) Refusal – Merely Descriptive
`Unacceptable Specimen of Use - Mark Not Shown Directly Associated With Services
`•
`
`
`
`
`SECTION 2(e)(1) REFUSAL – MERELY DESCRIPTIVE
`
`
`Registration is refused because the applied-for mark merely describes a feature of Applicant’s services. 
`Trademark Act Section 2(e)(1), 15 U.S.C. §1052(e)(1); see TMEP §§1209.01(b), 1209.03 et seq.
`
` A
`
` mark is merely descriptive if it describes an ingredient, quality, characteristic, function, feature,
`purpose, or use of an applicant’s services.  TMEP §1209.01(b); see, e.g., In re TriVita, Inc., 783 F.3d
`872, 874, 114 USPQ2d 1574, 1575 (Fed. Cir. 2015) (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,
`252 U.S. 538, 543 (1920)). 
`
`The applicant's mark is SHOVELMETRICS for " Design and development of integrated data
`collection and wireless transmission hardware systems for equipment and for software applications
`associated with that equipment at mining, construction, and industrial sites".
`
`Here, the wording "METRICS" is defined as "a group of numbers giving information about a particular
`feature of a piece of software or hardware" (See attached evidence from macmillandictionary.com). 
`Moreover, the applicant's website indicates that the services are for designing and developing "a
`complete bucket monitoring system for all shovels" (See attached evidence from motionmetrics.com).
`In this case, the wording "SHOVELMETRICS" immediately conveys and merely describes a feature or
`purpose of Applicant's identified services, namely, design and development of hardware for monitoring
`data for shovels. 
`
`Each word in Applicant's composite mark, when considered individually and as a whole, immediately
`conveys this feature of Applicant's services.  Generally, if the individual components of a mark retain
`their descriptive meaning in relation to the services, the combination results in a composite mark that is
`itself descriptive and not registrable.  In re Fat Boys Water Sports LLC, 118 USPQ2d 1511, 1516
`(TTAB 2016) (citing In re Tower Tech, Inc., 64 USPQ2d 1314, 1317-18 (TTAB (2002)); TMEP
`§1209.03(d); see, e.g., In re Petroglyph Games, Inc., 91 USPQ2d 1332, 1341 (TTAB 2009) (holding
`BATTLECAM merely descriptive of computer game software with a feature that involve battles and
`provides the player with the option to utilize various views of the battlefield); In re Cox Enters., 82
`USPQ2d 1040, 1043 (TTAB 2007) (holding THEATL merely descriptive of publications featuring
`
`

`

`news and information about Atlanta where THEATL was the equivalent of the nickname THE ATL for
`the city of Atlanta); In re Tower Tech, Inc., 64 USPQ2d 1314, 1317-18 (TTAB 2002) (holding
`SMARTTOWER merely descriptive of highly automated cooling towers); In re Sun Microsystems,
`Inc., 59 USPQ2d 1084, 1085 (TTAB 2001) (holding AGENTBEANS merely descriptive of computer
`software for use in developing and deploying application programs on a global computer network).  In
`this case, Applicant's mark does not seem to create any additional non-descriptive meaning in relation
`to the services; rather, the wording "SHOVEL" and "METRICS" only describe a feature or purpose of
`the design and development services, namely, design and development of hardware and software for
`analyzing metrics of shovels.
`
`Although applicant’s mark has been refused registration, applicant may respond to the refusals by
`submitting evidence and arguments in support of registration.
`
`
`Section 2(e)(1) Refusal Response Options
`
`The applied-for mark has been refused registration on the Principal Register.  Applicant may respond
`by submitting evidence and arguments against the refusal.  In addition, applicant may respond by doing
`one of the following:  (1) amending the application to seek registration under Trademark Act Section
`2(f), or (2) amending the application to seek registration on the Supplemental Register.  See 15 U.S.C.
`§§1052(f), 1091. 
`
`Section 2(f) Acquired Distinctiveness
`
`To seek registration on the Principal Register based on a claim of acquired distinctiveness under
`Section 2(f), applicant generally may (1) submit actual evidence that the mark has acquired
`distinctiveness of the goods and/or services, (2) claim ownership of an active prior U.S. registration for
`the same mark for sufficiently similar goods and/or services, or (3) provide the following verified
`statement of five years’ use:  “ The mark has become distinctive of the goods and/or services through
`the applicant’s substantially exclusive and continuous use of the mark in commerce that the U.S.
`Congress may lawfully regulate for at least five years immediately before the date of this statement.” 
`See 15 U.S.C. §1052(f); 37 C.F.R. §2.41(a); TMEP §§1212.03-.06 et seq.
`
`However, in this case, the USPTO will not accept a verified statement of five years’ use alone to
`establish distinctiveness because applicant’s mark is highly descriptive of applicant’s services.  See In
`re Kalmbach Publ’g Co., 14 USPQ2d 1490, 1491-92 (TTAB 1989); TMEP §1212.05(a).  An
`applicant’s evidentiary burden of showing acquired distinctiveness increases with the level of
`descriptiveness of the mark sought to be registered; a more descriptive term requires more evidence. 
`Royal Crown Co. v. Coca-Cola Co., 892 F.3d 1358, 1365, 127 USPQ2d 1041, 1045 (Fed. Cir. 2018)
`(citing In re Steelbuilding.com, 415 F.3d 1293, 1300, 75 USPQ2d 1420, 1424 (Fed. Cir. 2005)).
`
`Applicant may submit other evidence of acquired distinctiveness (such as verified statements of long
`term use, advertising and sales expenditures, examples of advertising, affidavits and declarations of
`consumers, customer surveys), with the following statement, if accurate:  “The evidence shows that
`the mark has become distinctive of the goods and/or services.”  See 37 C.F.R. §2.41; TMEP
`§§1212.06 et seq.  When determining whether the evidence shows the mark has acquired
`distinctiveness, the trademark examining attorney will consider the following six factors:  (1)
`association of the mark with a particular source by actual purchasers (typically measured by customer
`surveys linking the name to the source); (2) length, degree, and exclusivity of use; (3) amount and
`
`

`

`manner of advertising; (4) amount of sales and number of customers; (5) intentional copying; and (6)
`unsolicited media coverage.  See Converse, Inc. v. ITC, 909 F.3d 1110, 1120, 128 USPQ2d 1538, 1546
`(Fed. Cir. 2018) (“the Converse factors”).  “[N]o single factor
`is determinative.” 
`In re
`Steelbuilding.com, 415 F.3d at 1300, 75 USPQ2d at 1424; see TMEP §§1212.06 et seq.  Rather, all
`factors are weighed together in light of all the circumstances to determine whether the mark has
`acquired distinctiveness.  In re Steelbuilding.com, 415 F.3d at 1300, 75 USPQ2d at 1424. 
`
`
`Supplemental Register
`
`To amend the application to the Supplemental Register, applicant must provide a written statement
`requesting that the application be amended to the Supplemental Register.  TMEP §816.01; see 15
`U.S.C. §1091; 37 C.F.R. §2.47. 
`
`Although registration on the Supplemental Register does not afford all the benefits of registration on
`the Principal Register, it does provide the following advantages to the registrant:
`
`
`(1)       Use of the registration symbol ® with the registered mark in connection with the
`designated goods and/or services, which provides public notice of the registration and potentially
`deters third parties from using confusingly similar marks.
`
`(2)       Inclusion of the registered mark in the USPTO’s database of registered and pending
`marks, which will (a) make it easier for third parties to find it in trademark search reports, (b)
`provide public notice of the registration, and thus (c) potentially deter third parties from using
`confusingly similar marks.
`
`(3)       Use of the registration by a USPTO trademark examining attorney as a bar to registering
`confusingly similar marks in applications filed by third parties.
`
`(4)       Use of the registration as a basis to bring suit for trademark infringement in federal court,
`which, although more costly than state court, means judges with more trademark experience,
`often faster adjudications, and the opportunity to seek an injunction, actual damages, and
`attorneys’ fees and costs.
`
`(5)       Use of the registration as a filing basis for a trademark application for registration in
`certain foreign countries, in accordance with international treaties.
`
`
`See 15 U.S.C. §§1052(d), 1091, 1094; J. Thomas McCarthy, McCarthy on Trademarks & Unfair
`Competition §§19:33, 19:37 (rev. 4th ed. Supp. 2017).
`
`
`
`UNACCEPTABLE SPECIMEN OF USE - MARK NOT SHOWN DIRECTLY ASSOCIATED
`WITH SERVICES
`
`Specimen does not show direct association between mark and services. Registration is refused
`because the specimen does not show a direct association between the mark and the services and fails to
`show the applied-for mark as actually used in commerce with the identified services in International
`Class  042. Trademark Act Sections 1 and 45, 15 U.S.C. §§1051, 1127; 37 C.F.R. §§2.34(a)(1)(iv),
`2.56(a), (b)(2); TMEP §§904, 904.07(a), 1301.04(f)(ii), (g)(i). An application based on Trademark Act
`
`

`

`Section 1(a) must include a specimen showing the applied-for mark as actually used in commerce for
`each international class of services identified in the application. 15 U.S.C. §1051(a)(1); 37 C.F.R.
`§§2.34(a)(1)(iv), 2.56(a); TMEP §§904, 904.07(a).
`
`When determining whether a mark is used in connection with the services in the application, a key
`consideration is the perception of the user. In re JobDiva, Inc., 843 F.3d 936, 942, 121 USPQ2d 1122,
`1126 (Fed. Cir. 2016) (citing Lens.com, Inc. v. 1-800 Contacts, Inc., 686 F.3d 1376, 1381-82, 103
`USPQ2d 1672, 1676 (Fed Cir. 2012)). A specimen must show the mark used in a way that would create
`in the minds of potential consumers a sufficient nexus or direct association between the mark and the
`services being offered. See 37 C.F.R. §2.56(b)(2); In re Universal Oil Prods. Co., 476 F.2d 653, 655,
`177 USPQ2d 456, 457 (C.C.P.A. 1973); TMEP §1301.04(f)(ii).
`
`To show a direct association, specimens consisting of advertising or promotional materials must (1)
`explicitly reference the services and (2) show the mark used to identify the services and their source. In
`re The Cardio Grp., LLC, 2019 USPQ2d 227232, at *2 (TTAB 2019) (quoting In re WAY Media,
`LLC, 118 USPQ2d 1697, 1698 (TTAB 2016)); TMEP §1301.04(f)(ii). Although the exact nature of the
`services does not need to be specified in the specimen, there must be something that creates in the mind
`of the purchaser an association between the mark and the services. In re Adair, 45 USPQ2d 1211, 1215
`(TTAB 1997) (quoting In re Johnson Controls Inc., 33 USPQ2d 1318, 1320 (TTAB 1994)).
`
`To show a direct association, specimens showing the mark used in rendering the identified services
`need not explicitly refer to those services, but “there must be something which creates in the mind of
`the purchaser an association between the mark and the service activity.” In re The Cardio Grp., LLC,
`2019 USPQ2d 227232, at *1 (TTAB 2019) (citing In re WAY Media, LLC, 118 USPQ2d 1697, 1698
`(TTAB 2016)).
`
`In the present case, the specimen does not show a direct association between the mark and services in
`that the advertising does not explicitly reference any design and development services.
`
`Examples of specimens.  Specimens for services must show a direct association between the mark and
`the services and include: (1) copies of advertising and marketing material, (2) a photograph of business
`signage or billboards, or (3) materials showing the mark in the sale, rendering, or advertising of the
`services.  See 37 C.F.R. §2.56(b)(2), (c); TMEP §1301.04(a), (h)(iv)(C).  Any webpage printout or
`screenshot submitted as a specimen must include the webpage’s URL and the date it was accessed or
`printed on the specimen itself, within the TEAS form that submits the specimen, or in a verified
`statement under 37 C.F.R. §2.20 or 28 U.S.C. §1746 in a later-filed response.  See 37 C.F.R. §2.56(c);
`TMEP §§904.03(i), 1301.04(a).
`
`Response options. Applicant may respond to this refusal by satisfying one of the following for each
`applicable international class:
`
`
`Submit a different specimen (a verified “substitute” specimen) that (a) was
`(1)       
`in actual use in commerce at least as early as the filing date of the application and (b)
`shows the mark in actual use in commerce for the services identified in the application. 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.
`
`
`
`Amend the filing basis to intent to use under Section 1(b) (which includes
`(2)       
`withdrawing an amendment to allege use, if one was filed), as no specimen is required
`before publication. This option will later necessitate additional fee(s) and filing
`requirements, including a specimen.   Applicant should note that if the application is
`amended to a Section 1(b) filing basis, the option to amend the application to
`the Supplemental Register would not be available until an acceptable amendment to
`allege use was filed. 
`
`
`For an overview of the response options referenced above and instructions on how to satisfy these
`options using the online Trademark Electronic Application System (TEAS) form, see the Specimen
`webpage.
`
`
`Please call or email the assigned trademark examining attorney with questions about this Office action. 
`Although an examining attorney cannot provide legal advice, the examining attorney can provide
`additional explanation about the refusal(s) and/or requirement(s) in this Office action.  See TMEP
`§§705.02, 709.06.  The USPTO does not accept emails as responses to Office actions; however, emails
`can be used for informal communications and are included in the application record.  See 37 C.F.R.
`§§2.62(c), 2.191; TMEP §§304.01-.02, 709.04-.05. 
`
`How to respond.   Click to file a response to this nonfinal Office action.
`
`
`/Crystal H. Yi/
`Crystal H. Yi
`Trademark Examining Attorney
`Law Office 123
`(571) 270-0763
`crystal.yi@uspto.gov
`
`
`
`RESPONSE GUIDANCE
`
`•
`
`•
`
`•
`
`Missing the response deadline to this letter will cause the application to abandon.  The
`response must be received by the USPTO before midnight Eastern Time of the last day of the
`response period.  TEAS 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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`Ge a group of numbersgiving information abouta particular feature of a piece of software or
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`Contact Us
`
`ShovelMetrics™
`A complete bucket
`monitoring solution for
`all shovels and
`excavators.
`ShovelMetrics™ uses deep learning to improve safety, energy efficiency, and
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`
`Company ~
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`Solutions v
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`Products v
`
`fer}cg)
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`

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`The Motion Metrics Service Desk is a customer support portal that provides
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`United States Patent and Trademark Office (USPTO)
`
`USPTO OFFICIAL NOTICE
`
`Office Action (Official Letter) has issued
`on April 20, 2022 for
`U.S. Trademark Application Serial No.  90845103
`
`A USPTO examining attorney has reviewed your trademark application and issued an Office
`action.  You must respond to this Office action in order to avoid your application
`abandoning.  Follow the steps below.
`
`(1)   Read the Office action. This email is NOT the Office action.
`
`(2)  Respond to the Office action by the deadline using the Trademark Electronic Application
`System (TEAS). Your response must be received by the USPTO on or before 11:59 p.m.
`Eastern Time of the last day of the response period. Otherwise, your application will be
`abandoned. See the Office action itself regarding how to respond.
`
`(3)  Direct general questions about using USPTO electronic forms, the USPTO website, the
`application process, the status of your application, and whether there are outstanding deadlines
`to the Trademark Assistance Center (TAC).
`
`After reading the Office action, address any question(s) regarding the specific content to the
`USPTO examining attorney identified in the Office action.
`
`GENERAL GUIDANCE
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`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 to ensure you receive important USPTO
`notices about your application.
`
`Beware of trademark-related scams . Protect yourself from people and companies that
`may try to take financial advantage of you. Private companies may call you and pretend
`to be the USPTO or may send you communications that resemble official USPTO
`documents to trick you. We will never request your credit card number or social security
`number over the phone. And all official USPTO correspondence will only be emailed
`from the domain “@uspto.gov.” Verify the correspondence originated from us by using
`your Serial Number in our database, TSDR, to confirm that it appears under the
`“Documents” tab, or contact the Trademark Assistance Center. 
`
`

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`Hiring a U.S.-licensed attorney . If you do not have an attorney and are not required to
`have one under the trademark rules, we encourage you to hire a U.S.-licensed attorney
`specializing in trademark law to help guide you through the registration process. The
`USPTO examining attorney is not your attorney and cannot give you legal advice, but
`rather works for and represents the USPTO in trademark matters.
`
` 
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