Appln. No. 77/095,125 TM: 83 (Stylized) - Response to OA Issued 11/11/2011

BACKGROUND

Applicant, GMBH (hereinafter “Red Bull” or “Applicant”), filed a Statement of Use in connection with Appln. No. 77/095,125 in Classes 9, 12, 16, 21, 25, 28 on October 19,

2011. On November 11, 2011, the Examining Attorney issued the instant Office Action, partially refusing the Statement of Use in connection with Classes 9 and 12 only1, stating that the applied-for

mark, as used on the specimens submitted with the Statement of Use, does not function as a

trademark to identify and distinguish Applicant’s goods from those of others and to indicate the

source of Applicant’s goods.

For the reasons set forth below, Applicant believes that the already-submitted specimens for

Classes 9 and 12 do, in fact, clearly function as a trademark to identify and distinguish Applicant’s

goods from those of others and to indicate the source of Applicant’s goods. As such, Applicant

respectfully requests that the specimens be accepted for Classes 9 and 12, and that Appln. No.

77/095,125 be approved for registration.

ARGUMENT

1. Class 9

A. Proposed Amended Goods

Computer game software, namely, specific features within vehicle racing games.

B. Explanation

As a preliminary matter, Applicant’s proposed amendment to the goods above should be

found permissible as it further narrows the scope of the goods, rather than impermissibly broadening

it. TMEP §1505.02(a).

1As the Office Action of November 11, 2011 is a partial refusal only pertaining to the specimens submitted for Classes 9 and 12, it is implied that the Statement of Use has been accepted in connection with the other classes in the application, namely, Classes 16, 21, 25, and 28.

-1- In NASCAR, the racing team (the source - or in this case, Applicant) is identified by fans and consumers by the number of the car, or in this case, the mark in question. See Exhibit A showing how each driver and team is identified by a specific number so that fans can identify the team and driver during the NASCAR events. This recognition of the source of the goods and services offered under the mark by fans and consumers is not limited to the field of racing alone.

Rather it expands to all mediums within which the trademark numbers are used, including video games. When a consumer purchases a NASCAR racing game and identifies his favorite team/driver by the trademark number on the car within the game (the same way he would if he were watching a NASCAR event), he is implicitly identifying the source of the trademark in connection with the video game. With the proposed limiting amendments to the goods, the mark as featured within the game identifies Applicant as the owner of that particular feature, namely the 83 car in the video game, and licensor of the mark for commercial use in connection with video games.

Showing that consumers would identifying the source of the pending mark in connection with the goods at issue is only one aspect of a valid specimen. The specimen must also show use of the mark in commerce, 15 U.S.C. § 1051(a)(1); 37 C.F.R. §§ 2.34(a)(1)(iv) and 2.56(a); TMEP

§ 904, which is clear from the specimens submitted with the Statement of Use. Under Trademark

Law, use in commerce is defined very broadly. It is intended to cover any and all commerce that may lawfully be regulated by Congress and any activity that substantially affects interstate commerce. 15 U.S.C. § 1127; TMEP § 901.01. Here, the NASCAR video game shown in the specimen allows the consumer to play as their favorite driver, who is necessarily connected to a trademarked numbered vehicle. Essentially, the video game is purchased specifically for the features within it - to give consumers the ability to feel like they, too, are in the driver’s seat as their favorite driver, sponsored by their favorite team. As consumers purchase the video game for the specific cars shown within, it is the trademarks featured within the game, such as the mark of Appln.

-2- No. 77/095,125 (as sponsored by Applicant, and licensed to the video game developer), rather than the overall idea of the video game that draws in customers and sells the product. Therefore, the mark of Appln. No. 77/095,125 plays a significant role in substantially affecting interstate commerce as related to video games, as it is a main reason consumers are drawn to purchase the video game in the first place.

As the specimens submitted for Class 9 clearly show a method for consumers to purchase the video game, and how the mark of Appln. No. 77/095,125 is featured within the game to entice consumers to purchase and to represent the source of the feature within, Applicant has satisfied the two requirements set forth for a valid specimen. Applicant respectfully requests that the proposed amendments to the goods in Class 9, as well as the previously-submitted specimens be approved.

2. Class 12

The Examining Attorney has refused the submitted specimen in Class 12, stating that it does not function as a trademark because it does not identify the name or source of the racing cars. More specifically, “it does not appear that the applicant sells racing cars, accordingly, the owner’s manual does not function for racing cars.” Applicant thanks the Examining Attorney for taking the time to discuss this refusal further with Applicant’s Attorney on February 2, 2012. In the telephone conversation, the Examining Attorney further clarified that the specimen was refused as the use of the mark in the owner’s manual appears to only show applied-for mark on racing cars while in a race, indicating that Applicant merely sponsors a racing team and does not actually provide the Class

12 goods to the public. Additionally, the Examining Attorney stated that the owner’s manual resembled more of promotional material for Team, rather than something that would be provided when a consumer purchases a vehicle. Applicant submits with this response supplemental evidence to clarify and support the previously-submitted specimen. Applicant is not replacing the specimen.

-3- This owner’s manual, the complete version of which is added as supplemental evidence in

Exhibit B, is what is provided with the street-legal racing car when purchased by the public. It

includes detailed information about the modifications Applicant has made to the Camry for

this publically available street-legal vehicle. It is routinely accepted that when a company modifies

a vehicle to create a special edition, that company becomes an identifiable source of the vehicle.

For example, Eddie Bauer, Inc. obtained U.S. Registration No. 1,447,361 for “trucks, namely, utility

vehicles” when they first introduced the Eddie Bauer edition of the Ford Explorer. The source of

this modified vehicle became two-fold – Eddie Bauer, Inc. and . The same

should hold true here. As Applicant has developed and manufactured this highly-modified version

of the Toyota Camry, Applicant has become a source of the vehicle, which is clarified further by the

owner’s manual.

Additionally, the applied-for mark, as shown in the manual and as seen on the cars available

to the public, identifies Applicant as the source, due to the unique nature of the stylized number

logos in NASCAR. As stated above, in NASCAR, the public identifies the source of a vehicle by

the stylized number on the side of the race car. Each driver is assigned one number (no duplicate numbers exist) and each team designs a highly stylized version of the number to associate the exact logo with the source. As NASCAR is one of the most highly viewed professional sports in the

United States, the consuming public has a high awareness that the stylized number represents the source of the car, and seeing such on a street-legal car in interstate commerce would create the same association – identifying Applicant as the source of the land vehicle. The submitted specimen clearly shows how the mark is used on the goods to identify Applicant as the source, as the excerpts

from the owner’s manual include clear photos of the mark on a “land vehicle”.

The Examining Attorney also stated that as the photo within the manual only shows the mark

in a racing environment, it does not appear to be available to the public. When a consumer wishes

-4- to purchase this modified vehicle, it is because of its association with NASCAR. Seeing the exact

vehicle to be purchased in a racing environment, entices the consumer even further into making the

purchase, by showing them that by buying this vehicle, it is as if they, too, participate in NASCAR

events. These kinds of marketing tactics are common used within the car industry (and any industry

for that matter). For example, convertibles are often advertised in year-round warm, sunny

environments, but this does not mean that they are not also sold in colder cities such as Chicago.

Simply because the photos showing the source-identifying mark are taken on a race track is not indicative of whether Applicant sells these cars, and such an assumption that these cars are not sold is without basis. As further supplemental evidence showing that the vehicles in question are available to the public for purchase, Applicant attaches Exhibit C. Exhibit C is a copy of the relevant portions of the executed Consignment Agreement between Applicant’s wholly owned subsidiary, Red Bull Racing, Inc., and Toyota of Cleveland. This agreement specifically anticipates the sale of the cars shown in the owner’s manual by the Toyota of Cleveland dealership in the ordinary course of business by stating:

The title to the Street Car shall pass directly from RBR to such person or persons to whom the Street Car shall be sold in the ordinary course of business in the manner and on the terms contained in this Agreement.

Per the above argument, Applicant respectfully requests that the originally submitted specimen be accepted for Class 12.

-5- Exhibit A

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3 of 3 1/13/2012 5:14 PM Exhibit B

-7- OWNER’S MANUAL

INSIDE THIS MANUAL THET HISTORY BRAKES REDR BULL RACING TEAM ...... 5 OPERATING ABS SYSTEM PARTS AND PIECES ...... 17 ASSEMBLYA CHASSISC FAB TO FINAL SETUP ...... 7 TIRES DESCRIPTION ...... 17 THET BODY CAMERA POD FLUIDS FRONT SPLITTER OIL REAR WING POWER STEERING ROOF FLAPS RESERVOIRS SIDE PODS WATER ...... 19 TEATHERS ...... 9 FUEL INSTRUMENT PANEL DESCRIPTION ...... 19 DESCRIPTION PROCEDURES ...... 11 SAFETY ENERGY-ABSORBING FOAM UNDER THE HOOD GLASS ENGINE LEG BRACES TRANSMISSION SEATS / SEATBELTS PERFORMANCE ...... 13 WINDOW NETS ...... 21 UNDER THE CAR DESCRIPTION ...... 15 WWW.REDBULLRACINGUSA.COM

OWNER’S MANUAL . 3

RED BULL RACING TEAM

In the early days of , we were clearing out cobwebs in a vacated race shop and focused on booking hotelms rooand getting to the track. But four short years later, here we are competing against the elite organizations in America’s premier form of sports.motor

Red Bull’s commitment to motorsports and our unconditional love of competition got us to this point. We have two of NASCAR’sest youngfin drivers and a team that roared from mid-pack to the winner’s circle and into championship contention. In the first three seasons, Redll Racing Bu Team went from NASCAR newborn to leading laps, winning a race and making the Chase.

THE HISTORY As owner and operator of a two-car Sprint Cup Series team, Red Bull Racing Team is an ambitious effort that shows the commitment to American motorsports and dedication to the Red Bull brand.

For our geeks, engineering means everything. For the greasers, so does the simple task of installing a steering wheel. They work all together, and the combined effort produces as much and power as we can fit into a single frame. Indeed, our minds are tuned to gettinged the Bull R over the finish line first.

In the silver No. 82 is Scott Speed, a former pilot who turned to stock cars in 2007. He’s in his second Sprint season. Cup His teammate is Brian Vickers, the 2003 Nationwide Series champion, two-time Cup race winner and 2009 Chase participant who drives theNo. blue 83.

NO. 83 DRIVER BRIAN VICKERS AT THE START OF THE 3M PERFORMANCE 400 08.17.08 MICHIGAN INTERNATIONAL SPEEDWAY

OWNER’S MANUAL . 5

ASSEMBLY

TASK DATES DESCRIPTION

CHASSIS FABRICATION 02.13.10 - 02.23.10 FIXTURING, FITTING AND WELDING TOGETHER THE TUBE STRUCTURE. MOUNTING BRACKETS, SHEET METAL AND PRE-BODY IS COMPLETE. CAR IS READY FOR BODY BUILD.

MEDIA BLAST 02.26.10 - 02.27.10 STRIPPING OFF PAINT FROM PREVIOUS PAINT JOB.

BODY FABRICATION 02.28.10 - 02.29.10 INSTALLING BODY PANELS TO NASCAR SPECIFICATIONS.

FINISH FABRICATION 02.30.10 - 03.02.10 COOLING DUCTS, WINDOWS, CRUSH AND FILLER PANELS ARE FABRICATED AND FIT BETWEEN THE BODY AND CHASSIS STRUCTURES.

ASSEMBLY 03.03.10 - 03.09.10 VEHICLE WAS ASSEMBLED PRIOR TO PAINT TO ENSURE ALL COMPONENTS WILL FIT.

CHASSIS FABRICATION 03.10.10 - 03.10.10 UPDATING OF SHEET METAL.

FINISH FABRICATION 03.11.10 - 03.16.10 STRIPPING AND PREPPING FOR PAINT.

PAINT SHOP 03.17.10 - 03.19.10 WASHING AND TREATING OF BARE METAL. PAINT CHASSIS AND INNER BODY. OUTER BODY PREPARATION WITH BLOCKING, SANDING AND SMOOTHING TRANSITIONS. PRIME BODY.

FINISH FABRICATION 03.20.10 - 03.22.10 RE-ASSEMBLE POST PAINT.

ASSEMBLY 03.23.10 - 03.25.10 SUSPENSION.

RHINE ENTERPRISE 03.29.10 - 03.29.10 COMPANY THAT CONVERTED CAR TO STREET LEGAL — LIGHTING, ANTI-LOCK BRAKES, ETC.

FINISH FABRICATION 03.30.10 - 03.30.10 FINAL FITTING OF LIGHTS FROM BILL RHINE AND PREP FOR PAINT.

PAINT SHOP 03.31.10 - 03.31.10 BLOCKING, SANDING OF BODY. APPLY BLACK SEALER TO BODY AND BASE COAT OF RED BULL BLUE. APPLY ALL GRAPHICS AND FINAL CLEAR COAT FOR GLOSSY FINISH.

FINISH FABRICATION 04.04.10 - 04.04.10 FINAL ASSEMBLY POST-PAINT.

ASSEMBLY 04.27.10 - 04.27.10 FINAL CHECK.

SETUP 04.28.10 - 04.29.10 WHEEL ALIGNMENT.

OWNER’S MANUAL . 7

ROOF FLAPS REAR WING THE BODY Introduced in 1994, roof flaps An adjustable aerodynamic feature that provides better balance and control in CAMERA POD help prevent a car from becoming traffic, the rear wing replaced the spoiler — a steel blade stripped across the rear Whether or not a car is carrying in-car action during airborne during a spin. As a car deck lid. The wing reduces turbulent air behind the car, and the angle is adjustable the telecast, a hockey puck-sized disk is mounted on the rotates and reaches an angle between zero and 16 degrees depending on desired downforce. roof near the windshield to ensure all cars are equal. where significant lift occurs, the low pressure above the flaps causes them to deploy. The two flaps generally keep cars on the racing surface as they spin. TETHERS Via tethers inside the engine compartment, the hood is attached to the chassis to help prevent it from taking off.

SIDE PODS The double-frame rail on the driver’s side has steel plating on the outside of the roll cage that helps prevent intrusion during impact. There is also energy-absorbing foam between the roll-cage door bars and panels. FRONT SPLITTER The front splitter — a piece of carbon fiber-reinforced plastic below the nose — impacts downforce and aerodynamic balance. The adjustable splitter enables teams to tune the front downforce to suit individual drivers and tracks. OWNER’S MANUAL . 9

INSTRUMENT PANEL

7 8 9 10 11 12 13

1 3 5-6

2 4

DESCRIPTION 1. START 2. IGNITION 3. RADIATOR ON/OFF 18 20 4. AUXILARY 5-6. TURN SIGNALS 7. WATER TEMPERATURE 8. TACHOMETER 19 21 9. OIL PRESSURE 10. ABS ON/OFF 11. ABS MALFUNCTION 12. ABS BRAKE BIAS 13. MASTER SWITCH PROCEDURES 14. HIGH BEAMS STARTING CAR: 1. Turn on master switch; 2. Start (START) switch up to engage; 3. Ignition (IGN) switch up to fire engine; 4. When 15. LOW BEAMS engine fires, release Start switch; 5. Radiator (RAD) switch up; 6. Driver fan (SEAT) to up – optional or if needed for driver comfort. 16. PARKING LIGHTS TURNING OFF CAR: 1. Ignition (IGN) switch down; 2. Turn off radiator (RAD) switch and driver fan (SEAT) switch, if used; 3. Turn off 14 16 17. WIPERS master power switch. 18. ABS DIAGNOSTIC PLUG-IN WIPERS: 1. Wiper (WIPER) switch up to engage (Note: Wiper located in driver side pouch.). 19. CIRCUIT BREAKER 10 LIGHTS: 1. To engage parking (PARK) lights turn switch up; 2. To engage low beam headlights (LOW BEAM) turn switch up; 3. To engage 20. CIRCUIT BREAKER 25 high beam headlights (HIGH BEAM) turn switch up. 15 17 21. CIRCUIT BREAKER 40 TURN SIGNALS: Left turn signal push lever down on steering column. Right turn signal push lever up on steering column.

OWNER’S MANUAL . 11

UNDER THE HOOD

ENGINE DRIVETRAIN DISPLACEMENT: 410 cubic inches TRANSMISSION: Manuel four speed (H pattern) BORE x STROKE: 4.040 x 4.00 inches TRANSMISSION FLUID: 29 ounces of 75-90 BLOCK: Cast iron FR 351 Boss Valvoline CRANKSHAFT: 4340 Steel Eagle DRIVESHAFT: Dynotech 47.50in long CONNECTING ROD: H Beam 4340 Eagle with 1350 U-joints PISTON: Mahle PowerPak -19cc GEARBOX: G-Force single-rail gearbox CAM: Hyd roller COMP Cams REAR GEAR: 96 ounces of 7590 Valvoline CAM LIFT: .571 intake/.576 exhaust CAM DURATION (AT .050 INCHES): 236/240 degrees PERFORMANCE CYLINDER HEAD: Edelbrock Victor Jr. CAPABILITIES VALVE SIZE: 2.055 intake/1.60 exhaust HEIGHT/WEIGHT: 53.5 inches/3,400 pounds VALVE SPRING: Manley Performance WHEELBASE: 110 inches COMPRESSION RATIO: 10.2:1 FIRST GEAR: 45 mph (72 kmh), 2.93:1 ROCKER ARMS: SS Jesel SECOND GEAR: 71 mph (114 kmh), 1.87:1 ROCKER ARM RATIO: 1.6 THIRD GEAR: 104 mph (167 kmh), 1.28:1 RECOMMENDED FUEL: 108 Octane FOURTH GEAR: 133 mph (214 kmh), 1.00:1 FUEL CAPACITY: 68 liters (18 gallons) FINAL DRIVE: 4.11:1 (Visteon ring and pinion) IGNITION TIMING: 32 degrees HORSEPOWER: 510 bhp at 6,100 rpms at 3,000 rpms TORQUE: 505 ft./lbs. at 4,600 rpms IGNITION: MSD REV LIMIT: 6,600 rpms CARBURETOR: AED 750 HO (no choke) ACCELERATION: 0-60 mph in 3.4 seconds INTAKE MANIFOLD: Victor Jr. QUARTER-MILE TIME: 11.7 seconds at 118

OWNER’S MANUAL . 13

UNDER THE CAR

2 1

3 4 5

6 7 8

DESCRIPTION 1. FUEL CELL HOUSING 2. TRACK BAR 3. REAR SHOCKS 4. SPRINGS 5. REAR-END HOUSING (HOLDS AXLES) 6. GEAR 9 7. DRIVESHAFT 8. TRUCK ARMS 9. EXHAUST

OWNER’S MANUAL . 15

OPERATING ABS SYSTEM 1. On/off switch turns the system on and off. Manufacturer suggests to always leave it on. 2 2. Red light (MAL) signifies a problem with the system. 1 3 Contact Red Bull Racing Team. 3. The adjustment knob has 1-10 adjustment levels. One TIRES (1) is turned counterclockwise or to the left. Ten (10) is turned clockwise or to the right. The manufacturer suggests leaving it on 6-7. The higher the number the more work BRAKES for the computer, therefore a longer breaking distance. The smaller the number the less work for the computer, therefore decreasing breaking distance. 4. Diagnostics computer plug-in — to be used only by the manufacturer if the system has problems or needs to be programmed. 5-7. The 10, 25, and 40 black buttons are circuit breakers. They should remain pushed in. If they do get tripped or “pop 4 5-7 out,” push them back in.

DESCRIPTION PARTS AND PIECES TYPE: Goodyear GT2 Radials CALIPERS AIR PRESSURE: 44 PSI (maximum) FRONT: Brembo nickel-plated with 38 MAXIMUM LOAD: 2,149 pounds and 44 millimeter pistons. WHEELS: Aero REAR: Brembo dual block with 26 and WHEEL NUT TORQUE: 80 ft./lbs. 30 millimeter pistons. ROTORS FRONT: Brembo 1.375-inch thick, 12.900 diameter, 48 vanes. REAR: Brembo 1.000-inch thick, 12.300 diameter, straight vane. PADS FRONT/REAR: Mintex F2 compound PEDALS Pro-System pedals with adjustable ratio. CYLINDERS Brembo Master Cylinders FRONT: 22.00 millimeters REAR: 22.00 millimeters CLUTCH: 19.00 millimeters

OWNER’S MANUAL . 17

FLUIDS FUEL

1

POWER STEERING FILL TWO INCHES FROM TOP.

WATER LOCATED IN RIGHT-REAR CORNER OF ENGINE.

2

DESCRIPTION TYPE: 98 Octane FUEL CELL CAPACITY: 18 gallons (68 liters) 1 FUEL CAPACITY GAUGE: Located OIL 3 on top of fuel cell in rear of vehicle. 1. OIL CAP 3 2. OIL CHECK 3. OIL PAN (UNSCREW BOLT TO DRAIN OIL)

TYPE: 6 quarts RESERVOIRS of Valvoline 20/50 1. REAR BRAKE (AP600) 2. FRONT BRAKE (AP600) 2 - INSTRUCTIONS: Unscrew 3. CLUTCH the bolt on the left to check oil level. Oil level should reach top. 2 OWNER’S MANUAL . 19

SAFETY

ENERGY-ABSORBING FOAM FOR DRIVER AND PASSENGER, THE FOAM IS INSERTED BETWEEN THE ROLL-CAGE BARS AND DOOR PANELS.

SEATS TWO ENERGY-ABSORBING ALUMINUM RACING SEATS. SEATBELTS SABELT FIVE-POINT SAFETY HARNESS FOR DRIVER AND PASSENGER.

LEG BRACES WINDOW NETS FOR DRIVER AND PASSENGER, LEGS FOR DRIVER AND PASSENGER SIDE WINDOWS. ARE CONTAINED ALL THE WAY TO THE FLOOR. DRIVER HAS PADDING UNDER- NEATH THE STEERING COLUMN.

GLASS QUARTER-INCH LEXAN SAFETY GLASS FOR WINDSHIELD, REAR WINDOWS AND REAR WINDSHIELD. OWNER’S MANUAL . 21

WWW.REDBULLRACINGUSA.COM Exhibit C

-8-