ESTTA1036765 02/18/2020 in the UNITED STATES PATENT and TRADEMARK OFFICE BEFORE the TRADEMARK TRIAL and APPEAL BOARD Proceeding

Home , Jean jacket, Shrug (clothing)

Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov ESTTA Tracking number: ESTTA1036765 Filing date: 02/18/2020

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD Proceeding 87722501 Applicant Anthony Specter Applied for Mark DENIM TEARS Correspondence JOHN R SOMMER Address JOHN R SOMMER ATTORNEY-AT-LAW 17426 DAIMLER STREET IRVINE, CA 92614 UNITED STATES [email protected] 949-753-5344

Submission Appeal Brief Attachments 87722591.Applicant brief.pdf(519894 bytes ) Exhibit A--Denim Tears Response to April 13 OA.pdf(1932225 bytes ) EXHIBIT B--Victoria Secrets PINK webpage.pdf(2903233 bytes ) Exhibit C--Denim sweaters - Google Search.pdf(552494 bytes ) Exhibit D--Denim t-shirts - Google Search.pdf(672132 bytes ) Exhibit E--Denim sweatshirts - Google Search.pdf(453426 bytes ) Filer's Name John R. Sommer Filer's email [email protected] Signature /John R. Sommer/ Date 02/18/2020 IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD

In re Application of

Trademark Examining Attorney: ANTHONY SPECTER Sahar Nasserghodsi

Appl. Serial No.: 87/722,501 Law Office 115

Appeal Filed: December 3, 2019

Trademark: DENIM TEARS

EX PARTE APPEAL

APPLICANT’S BRIEF

In the matter of the petition for review of the Final Refusal of:

Applicant’s Mark: DENIM TEARS

Application Serial No.: 87/722,501

Applicant’s Goods: Belts; Blouses; Coats; Dresses; Gloves; Hosiery; Jackets; Jerseys; Lingerie; Night gowns; Night shirts; Pajamas; Pants; Shirts; Shorts; Skirts; Socks; Sweat pants; Sweat shirts; Sweaters; Swim wear; Swim suits; T-shirts; Tank tops; Tights; Underwear; Vests; Wind resistant jackets; Wristbands as clothing; Beanies; Caps being headwear; Hats; Scarves; Visors being headwear; Footwear; boots; Sandals; shoes; Slippers all the aforementioned goods made wholly or substantially from denim (although the Examining Attorney did not enter this into TESS)

International Class: 25

TABLE OF CONTENTS

I. INTRODUCTION ...... 1

II. BACKGROUND ...... 1

A. The DENIM TEARS Brand ...... 1

B. Refusals By Examining Attorney ...... 2 1. Original Application ...... 2 2. March 28, 2018 Office Action ...... 2 3. April 13, 2018 Revised Office Action ...... 3 4. Applicant’s Response to Office Action and Revised Office Action...... 4 5. November 16, 2018 Office Action...... 4 6. Applicant’s Response...... 4 7. Final Refusal ...... 4

III. ARGUMENT ...... 5

A. Legal Standard ...... 5

B. No Deceptiveness if Some Goods Are Made of Denim...... 6

C. No Deceptiveness Because a Pseudonym ...... 6

D. No Deceptiveness Because Term is a Pun...... 7

E. No Deceptiveness Because Whether Products Are Made of Denim is Obvious ...... 7

F. If the Examining Attorney is Correct, Then A Large Number of Registrations Are Invalid 8

G. The “Deceptiveness” Was Created By the Examining Attorney’s Requirement...... 9

H. Applicant is Using the Mark on Denim Products, So Mark is Not Misdescriptive...... 10

I. The Requirement to Limited Goods Made of Denim is Improper as to Goods Not Normally Made of Denim...... 11

IV. CONCLUSION...... 13

TABLE OF AUTHORITIES

CASES

In re Spirits Int’l, N.V., 563 F.3d 1347, 1353, 1356, 90 USPQ2d 1489, 1492-93, 1495 (Fed. Cir. 2009) ...... 5

In Re Tapco Int’l Corp., 122 USPQ2d 1369, 1371 (TTAB 2017)...... 5

STATUTES

TMEP Section 1203.02(b) ...... 5

iii

I. SUMMARY OF ARGUMENT

The Examining Attorney refused DENIM TEARS on the ground that if the goods are not made of denim, the mark is deceptive. The refusal is incorrect since the applicant agreed to limit the identification to goods to “made of denim.” It follows that the applied for mark, as to the applied-for goods, is not deceptive. The Examining Attorney appears to have been concerned that if Applicant used the mark on goods not made of denim (and covered by the registration) the mark would be deceptive. However, whether the Applicant makes use of the mark on other goods, not covered by the application, is irrelevant to the right to register.

The refusal is also incorrect because DENIM TEARS is not misleading for multiple reasons, each one is sufficient to overcome the refusal:

1. The mark is the pseudonym of its founder, Tremaine Emory.

2. No reasonable consumer is thinking he or she is buying either wet denim (as in crying),

or a ripped garment (as in torn, depending how TEARS is pronounced).

3. No reasonable consumer purchases clothing without seeing either the product in person

or a picture. It is obvious from the photograph whether the product is or is not made of

denim.

4. Consumers do not take the clothing brand literally. PINK is a well-known brand, but

consumers do not expect the clothing to all be prink. The clothing store BUCKLE is not

deceptive because it sells many products that do not contain buckles.

II. BACKGROUND

A. The DENIM TEARS Brand

The mark is a pseudonym for the brand’s designer, Tremaine Emory. The mark would also

1 be understood as a pun, and not describing a feature of the goods at all. “TEARS” can mean either

(a) a rip, or (b) watery secretions from the eye(s). In either event, the mark as a whole would be understood to be fanciful. No consumer would think they are purchasing wet clothing. And, if buying torn clothing, that would be obvious from the goods themselves (or the photographs of the apparel).

B. Refusals By Examining Attorney

The Examining Attorney has refused the Application on grounds that are contradictory.

After Applicant reluctantly agreed to limit all goods to “being made of denim”, the

Examining Attorney flipped the refusal from descriptive to the exact opposite. She asserted that the mark was now deceptive because it was misdescriptive. Either the mark is descriptive or it is misdescriptive (i.e., deceptive). It cannot be both.

1. Original Application

Applicant believes that DENIM TEARS is not misdescriptive in the real world.

Accordingly, the original identification was:

Belts; Blouses; Coats; Dresses; Gloves; Hosiery; Jackets; Jerseys; Lingerie; Night gowns; Night shirts; Pajamas; Pants; Shirts; Shorts; Skirts; Socks; Sweat pants; Sweat shirts; Sweaters; Swim wear; Swim suits; T-shirts; Tank tops; Tights; Underwear; Vests; Wind resistant jackets; Wristbands as clothing; Beanies; Caps being headwear; Hats; Scarves; Visors being headwear; Footwear; boots; Sandals; shoes; Slippers.

2. March 28, 2018 Office Action The March 28, 2018, Office Action asserted that: “Furthermore, applicant’s mark includes the wording “DENIM”, which indicates that applicant’s goods will have and/or will exhibit, the following feature or

characteristic: made from 100% cotton fabric. See the attached evidence from www.cottonmill.com.” The Examining Attorney suggested the following identification: Belts made wholly or substantially from denim; Blouses made wholly or substantially from denim; Coats made wholly or substantially from denim; Dresses made wholly or substantially from denim; Gloves; Hosiery; Jackets made wholly or substantially from denim; Jerseys; Lingerie; Night gowns; Night shirts; Pajamas; Pants made wholly or substantially from denim; Shirts made wholly or substantially from denim; Shorts made wholly or substantially from denim; Skirts made wholly or substantially from denim; Socks; Sweat pants made wholly or substantially from denim; Sweat shirts made wholly or substantially from denim; Sweaters made wholly or substantially from denim; Swim wear made wholly or substantially from denim; Swim suits made wholly or substantially from denim; T- shirts made wholly or substantially from denim; Tank tops made wholly or substantially from denim; Tights; Underwear; Vests made wholly or substantially from denim; Wind resistant jackets; Wristbands as clothing; Beanies; Caps being headwear made wholly or substantially from denim; Hats made wholly or substantially from denim; Scarves; Visors being headwear made wholly or substantially from denim; Footwear; boots; Sandals; shoes; Slippers. She also requested a disclaimer of “DENIM.”

As shown by this Office Action, the Examining Attorney recognized that consumers would not be misled by mark for the types of clothing that are not normally made from denim.

She is correct. For example, tights and underwear are never made of denim (or if someone has made them of denim, such usage is so unusual that it does not affect consumer expectations)1.

3. April 13, 2018 Revised Office Action

On April 13, 2018, prior to receiving any Response to Office Action from Applicant, the

Examining Attorney suggested a substitute identification:

“Belts; Blouses; Coats; Dresses; Gloves; Hosiery; Jackets; Jerseys; Lingerie; Night gowns; Night shirts; Pajamas; Pants; Shirts; Shorts; Skirts; Socks; Sweat pants; Sweat shirts; Sweaters; Swim wear; Swim; T-shirts; Tank tops; Tights; Underwear; Vests; Wind

1 Applicant also submits that it is unnecessary to have any limitation on those types of goods are not commonly made of denim, for example, t-shirts and sweatshirts are never made of denim. See Section III.I below.

resistant jackets; Wristbands as clothing; Beanies; Caps being headwear; Hats; Scarves; Visors being headwear; Footwear; boots; Sandals; shoes; Slippers; all the aforementioned goods made wholly or substantially from denim.”

4. Applicant’s Response to Office Action and Revised Office Action

Applicant agreed to the Examining Attorney’s April 13, 2019, identification except for the “all the aforementioned goods made wholly or substantially from denim.” See,

Response to Office Action, October 12, 2018 (attached hereto as Exhibit “A”). Applicant argued that such limitation was not proper.

5. November 16, 2018 Office Action

On November 16, 2018, the Examining Attorney maintained the refusal, but on new grounds, that the mark was deceptive. She also required a disclaimer of “DENIM.”

6. Applicant’s Response

Applicant responded on May 16, 2019. Applicant disputed the deceptiveness refusal, but

Applicant agreed, reluctantly, to the disclaimer, all the aforementioned goods made wholly or substantially from denim.”2

7. Final Refusal

The Examining Attorney issued a Final Refusal on June 5, 2019, maintaining the deceptiveness refusal. Applicant responded on December 3, 2019, confirming agreement to the

2 Applicant agreed to add such disclaimer if it would result in approval of the application. The Examining Attorney failed to enter such additional language into the identification of record.

4 disclaimer of “DENIM,” agreeing to the limitation of “made wholly or substantially of denim”, and requesting reconsideration.

Reconsideration was denied on December 19, 2019.

III. ARGUMENT

A. Legal Standard

In this case, there is no dispute about the legal standard for deceptiveness. Rather,

Applicant contends that the Examining Attorney’s conclusion of deceptiveness is unreasonable and plainly incorrect.

There is no dispute about the legal standard quoted in the Examining Attorney’s

November 16, 2018, Office Action:

“A term is deceptive when all three of the following criteria are met:

(1) Is the term misdescriptive of the character, quality, function, composition or

use of the goods?

(2) If so, are prospective purchasers likely to believe that the misdescription

actually describes the goods?

(3) If so, is the misdescription likely to affect the purchasing decision of a

significant portion of relevant consumers?

In re Tapco Int’l Corp., 122 USPQ2d 1369, 1371 (TTAB 2017) (citing In re Budge Mfg.

Co., 857 F.2d 773, 775, 8 USPQ2d 1259, 1260 (Fed. Cir. 1988)); TMEP §1203.02(b); see

also In re Spirits Int’l, N.V., 563 F.3d 1347, 1353, 1356, 90 USPQ2d 1489, 1492-93, 1495

(Fed. Cir. 2009) (holding that the test for materiality incorporates a requirement that a

“significant portion of the relevant consumers be deceived”).”

However, the Examining Attorney concluded:

“In this case, applicant’s mark includes the wording “DENIM”, indicating that the goods

have or exhibit the following feature or characteristic: made wholly or substantially from

denim fabric. However, according to the recited goods in the application, applicant’s

goods do not in fact have or exhibit this feature or characteristic.”

As discussed below, this conclusion is wrong and not supported by evidence.

B. No Deceptiveness if the Goods Covered by the Application Are Made of Denim

The Examining Attorney refuses Applicant’s application because it is possible for

Applicant to use the mark on goods not made of denim, and therefore, the mark is allegedly deceptive as to such goods. However, that is not the proper question. The question is whether the goods covered by the application are deceptive. The short answer is that only goods made of denim are covered by the application because of the limitation “all the aforementioned goods made wholly or substantially from denim.”

It follows that if the identification is limited to goods made of denim, then the “DENIM” portion of DENIM TEARS cannot be deceptive. This simple fact is ground for remand with instructions to approve for publication.

This ground alone is sufficient to remand with instructions to approve the application for publication.

C. No Deceptiveness Because The Mark is a Pseudonym

The undisputed evidence is that DENIM TEARS is a pseudonym for Tremaine Emory, the founding designer of the DENIM TEARS brand. That should be the end of the matter. The mark is not deceptive.

The Examining Attorney stated “Applicant’s argument is unpersuasive because deceptiveness and misdescriptiveness is determined in relation to the goods for which registration is sought; therefore, “the fact that a term may have different meanings in different contexts” is not controlling.” However, merely citing to the case law ignores the factual question about whether DENIM TEARS is not deceptive because of the consumers for this brand are likely to know of the pseudonym.

The Examining Attorney cited no evidence to dispute the Applicant’s evidence that

DENIM TEARS is a pseudonym for Tremaine Emory.

More broadly, the contention that the pseudonym is deceptive simply does not comport with the real world. Did purchasers think that when they purchased the song Purple Rain from

PRINCE (Reg. No. 5,438,807) that they were getting a recording by the son of a monarch?

Obviously not. Thus, the first factor is absent.

D. No Deceptiveness Because Term is a Pun

Whether the word “TEARS” means a rip or a secretion from the eyes, DENIM TEARS is obviously a pun. It is not possible to purchase clothing impregnated with secretions from the eye because it would promptly dry in the store or before being shipped. And if the pun is understood as a rip, it is obvious that a rip is not being sold because that is a verb, not a noun.

This is another reason why the first element is missing.

E. No Deceptiveness Because Whether Products Are Made of Denim is Obvious

Patently the second and third elements of the deceptiveness test are not applicable to this mark. It is extremely doubtful that any consumer would purchase clothing without seeing the item or a picture. The Board can take judicial notice that every store that offers clothing shows

7 the products and that every online offer for clothing shows a picture of the product. And it is always obvious from the item (if in a store) or the photograph (if online) if the clothing is made from denim or not. Specifically, as to Applicant’s products, the photographs always clearly show whether the product is made from denim.

A consumer will always be able to see the clothing before purchasing and know whether it is made of denim or not. Thus, as a matter of law, the second factor is absent.

As to the third factor, the alleged misdescription will not affect the purchasing decision of a significant portion of relevant consumers because all consumers can tell whether “denim” is meant literally and is a feature of the product.

Accordingly, the mark cannot be deceptive as a matter of law.

F. If the Examining Attorney is Correct, Then a Large Number of Registrations Are

Invalid

It is not necessary to make a long list of marks which contain a term that is descriptive. It is sufficient to refer to two examples.

BUCKLE is registered. The specimens for Reg. 4,185,395 (filed September 19, 2011, available on TESS) show a “buckle” on belts. But the specimens do not show buckles. In the specimen for Class 25 shows a sweater; it has the mark BUCKLE on a tag, but there is no buckle attached. The specimen for Class 35 shows only clothing, and significantly, no buckles.

If the principle advanced by the Examining Attorney is correct, then the specimens should have been rejected and the identification should have been limited to “retail store services featuring buckles.” But the Examining Attorney for such application did not raise a deceptiveness refusal because no reasonable consumer would think that the goods all exhibit or use buckles.

The Board can take judicial notice of the famous PINK brand by Victoria Secret. PINK products come in a wide variety of colors (including pink, but also black, blue, grey, plaid, etc.).

For example:

See also Exhibit “B”, https://www.victoriassecret.com/pink, downloaded February 18, 2020, showing the use of many colors, including pink. Has there been a groundswell of criticism from the public because consumers were misled into buying PINK brand products only to discover to their horror that the products are available in another color? Obviously not. The same is true for

DENIM TEARS.

The registration for PINK LABEL (Reg. No. 5886312) for “Lingerie” in Class 25 is not narrowed to products made wholly of “pink fabric”. Some of the specimens accepted by the

PTO show black labels (i.e., not pink labels) and products are in pink as well as other colors.

Was this registration granted in error? Or is the Examining Attorney in this case making an unrealistic assumption that is contrary to the real world expectations of consumers as shown by other registrations?

G. The “Deceptiveness” Was Created By the Examining Attorney’s Requirement

The Examining Attorney’s refusal due to deceptiveness is due solely to the Examining

Attorney’s own requirement. Applicant did not want to add “all the aforementioned

9 goods made wholly or substantially from denim.” Only after Applicant reluctantly consented to add this limitation to the identification did the Examining Attorney flip the language she insisted on, to create the alleged deceptiveness.

If the alleged deceptiveness was the sole result of the Examining Attorney’s requirement then it is not a real world deception. Therefore, the first factor of the deceptiveness test does not apply and the mark is not deceptive.

H. Applicant is Using the Mark on Denim Products, So Mark Is Not Misdescriptive

It may be that the Examining Attorney assumed Applicant would never make products made of denim. This is an intent-to-use application. Whether Applicant sells products within the scope of the identification is to be determined upon the filing of the statement of use. The

Examining Attorney cannot assume that the Applicant will not make goods within the scope of the identification.

Furthermore, Applicant is actually using the mark on goods made of denim. For example, it is doing a collaboration with Levi Strauss & Co. A few sample photographs are included to provide the Examining Attorney and the Board with proof that the term is already being seem by the public (and there have been no reports of confused or deceived customers).

These photos show the DENIM TEARS mark used on denim jeans, as well as denim jackets. Such examples undeniably demonstrate that DENIM does not make the mark deceptive.

Would a significant portion of the public be deceived into purchasing products not made of denim? Obviously not. First, the products are made of denim. Second, it is obvious that

DENIM TEARS is not intended to be taken literally.

I. The Requirement to Limited Goods Made of Denim is Improper as to Goods Not Normally Made of Denim

The Examining Attorney was doing the correct thing when she tried to distinguish goods that are normally made of denim (such as pants) with those goods that are not normally made of denim. See, Office Action, dated March 28, 2018.

This appeal is necessary because she insisted on adding “made wholly or substantially of denim” to goods that are not normally made of denim, for example, t-shirts.

Applicant submits that t-shirts and sweatshirts are never made of denim. If some random person has made such, it is so rare that it does not affect consumer expectations. The internet shows t-shirts are available in a color named denim, but not made of denim. There are a few

“hoodies” made of denim available online but usually are not described as sweatshirts. In fact, it is doubtful that a garment made from denim could ever considered a “t-shirt” or a “sweatshirt” because a defining characteristic of those products are that they are made from knit cotton fabric

(t-shirts) or fleece (sweatshirts), which negates them being made from denim (which is woven).

Applicant’s counsel, who has been in the clothing industry for over 25 years has never seen a t-shirt or sweatshirt made of denim. Applicant gave into the Examining Attorney’s unreasonable limitation as to t-shirts and sweatshirts just to get the application approved without wasting the client’s money. But if the Examining Attorney still will not approve the application, then Applicant should not have to agree to “made of denim” limitation for goods that cannot be made of denim. The Examining Attorney’s language prevents Applicant from ever getting a registration for t-shirts and sweatshirts because such goods cannot be made from denim.

Applicant submits that a good test of whether a type of product is made of denim is whether a Google search for denim and the term, such as “denim t-shirt” results in more than a minimal amount of images for clothing made of denim. Under this test, “sweater, sweatshirts and t-shirts” are not commonly made of denim. (If one excludes use of the word “denim” as a color). For examples, see Exhibits “C” through “E”.

Accordingly, Applicant believes that none of these goods should be subject to a limitation that they be made of denim:

Hosiery; Jerseys; Lingerie; Night gowns; Night shirts; Pajamas; Socks; Sweat pants; Sweat shirts; Sweaters; Swim wear; Swim suits; T-shirts; Tank tops; Tights; Underwear; Wind resistant jackets; Scarves; boots; shoes.

The goods most important to the Applicant that should not be limited to denim, because such goods are never made of denim, are sweatshirts, t-shirts and tank tops. Accordingly, Applicant requests that the Board remand with instructions not to limit such types of clothing to being made of denim.

IV. CONCLUSION

Applicant respectfully submits that the Examining Attorney has incorrectly refused the mark as deceptive. The mark cannot be deceptive if Applicant has agreed to limit the identification to products to being “made wholly or substantially of denim.”

The Board should also remand with instructions not to require a limitation as to “made wholly or substantially of denim” as to goods that are not normally made of denim such as tights, underwear, and especially t-shirts, sweaters, sweatshirts, and tank tops.

Dated this 18th day of February 2020. /s/ John R. Sommer ______JOHN R. SOMMER 17426 Daimler Street Irvine, California 92614 Tel: (949) 752-5344 Fax: (949) 752-5439

Attorney for Applicant ANTHONY SPECTER

Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1957 (Rev 10/2011) OMB No. 0651-0050 (Exp 09/20/2020) Response to Office Action

The table below presents the data as entered.

Input Field Entered SERIAL NUMBER 87722501 LAW OFFICE ASSIGNED LAW OFFICE 115 MARK SECTION

MARK https://tmng-al.uspto.gov/resting2/api/img/87722501/large

LITERAL ELEMENT DENIM TEARS

STANDARD CHARACTERS YES

USPTO-GENERATED IMAGE YES The mark consists of standard characters, without claim to any particular font style, size MARK STATEMENT or color. GOODS AND/OR SERVICES SECTION (current)

INTERNATIONAL CLASS 025

DESCRIPTION Belts; Blouses; Coats; Dresses; Gloves; Hosiery; Jackets; Jerseys; Lingerie; Night gowns; Night shirts; Pajamas; Pants; Shirts; Shorts; Skirts; Socks; Sweat pants; Sweat shirts; Sweaters; Swim wear; Swim suits; T-shirts; Tank tops; Tights; Underwear; Vests; Wind resistant jackets; Wristbands; Beanies; Caps being headwear; Hats; Scarves; Visors; Footwear; boots; Sandals; shoes; Slippers

FILING BASIS Section 1(b) GOODS AND/OR SERVICES SECTION (proposed)

INTERNATIONAL CLASS 025

TRACKED TEXT DESCRIPTION Belts; Blouses; Coats; Dresses; Gloves; Hosiery; Jackets; Jerseys; Lingerie; Night gowns; Night shirts; Pajamas; Pants; Shirts; Shorts; Skirts; Socks; Sweat pants; Sweat shirts; Sweaters; Swim wear; Swim suits; T-shirts; Tank tops; Tights; Underwear; Vests; Wind resistant jackets; Wristbands; Wristbands as clothing; Beanies; Caps being headwear; Hats; Scarves; Visors; Visors being headwear; Footwear; boots; Sandals; shoes; Slippers

FINAL DESCRIPTION Belts; Blouses; Coats; Dresses; Gloves; Hosiery; Jackets; Jerseys; Lingerie; Night gowns; Night shirts; Pajamas; Pants; Shirts; Shorts; Skirts; Socks; Sweat pants; Sweat shirts; Sweaters; Swim wear; Swim suits; T-shirts; Tank tops; Tights; Underwear; Vests; Wind resistant jackets; Wristbands as clothing; Beanies; Caps being headwear; Hats; Scarves; Visors being headwear; Footwear; boots; Sandals; shoes; Slippers

FILING BASIS Section 1(b) ADDITIONAL STATEMENTS SECTION DENIM TEARS appearing in the mark means or signifies or is a term of art for the SIGNIFICANCE OF MARK individual, Tremaine Emory, in the relevant trade or industry or as used in connection with the goods/services/collective membership organization listed in the application.

MISCELLANEOUS STATEMENT Applicant's substantive arguments and exhibits are attached hereto in PDF format.

MISCELLANEOUS FILE NAME(S)

ORIGINAL PDF FILE mis-645818066-20181012175105995077_._DENIM_TEARS-25__Response_to_OA.pdf CONVERTED PDF FILE(S) \\TICRS\EXPORT17\IMAGEOUT17\877\225\87722501\xml5\ROA0002.JPG (5 pages)

\\TICRS\EXPORT17\IMAGEOUT17\877\225\87722501\xml5\ROA0003.JPG

\\TICRS\EXPORT17\IMAGEOUT17\877\225\87722501\xml5\ROA0004.JPG

\\TICRS\EXPORT17\IMAGEOUT17\877\225\87722501\xml5\ROA0005.JPG

\\TICRS\EXPORT17\IMAGEOUT17\877\225\87722501\xml5\ROA0006.JPG SIGNATURE SECTION

RESPONSE SIGNATURE /John R. Sommer/

SIGNATORY'S NAME John R. Sommer

SIGNATORY'S POSITION Attorney of record, California bar member

SIGNATORY'S PHONE NUMBER (949) 752-5344

DATE SIGNED 10/12/2018

AUTHORIZED SIGNATORY YES FILING INFORMATION SECTION

SUBMIT DATE Fri Oct 12 17:57:34 EDT 2018 USPTO/ROA-XX.XX.XXX.XX-20 181012175734159551-877225 01-61087954c5cd48bd835e7c TEAS STAMP 5a4620b4975eb7863d5969123 4ea3fd55aad92e0f785-N/A-N /A-20181012175105995077

Response to Office Action To the Commissioner for Trademarks:

Application serial no. 87722501 DENIM TEARS(Standard Characters, see https://tmng-al.uspto.gov/resting2/api/img/87722501/large) has been amended as follows:

CLASSIFICATION AND LISTING OF GOODS/SERVICES Applicant proposes to amend the following class of goods/services in the application: Current: Class 025 for Belts; Blouses; Coats; Dresses; Gloves; Hosiery; Jackets; Jerseys; Lingerie; Night gowns; Night shirts; Pajamas; Pants; Shirts; Shorts; Skirts; Socks; Sweat pants; Sweat shirts; Sweaters; Swim wear; Swim suits; T-shirts; Tank tops; Tights; Underwear; Vests; Wind resistant jackets; Wristbands; Beanies; Caps being headwear; Hats; Scarves; Visors; Footwear; boots; Sandals; shoes; Slippers Original Filing Basis: Filing Basis: Section 1(b), Intent to Use: For a trademark or service mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to use the mark in commerce on or in connection with the identified goods/services in the application. For a collective trademark, collective service mark, or collective membership mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by members on or in connection with the identified goods/services/collective membership organization. For a certification mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by authorized users in connection with the identified goods/services, and the applicant will not engage in the production or marketing of the goods/services to which the mark is applied, except to advertise or promote recognition of the certification program or of the goods/services that meet the certification standards of the applicant.

Proposed: Tracked Text Description: Belts; Blouses; Coats; Dresses; Gloves; Hosiery; Jackets; Jerseys; Lingerie; Night gowns; Night shirts; Pajamas; Pants; Shirts; Shorts; Skirts; Socks; Sweat pants; Sweat shirts; Sweaters; Swim wear; Swim suits; T-shirts; Tank tops; Tights; Underwear; Vests; Wind resistant jackets; Wristbands; Wristbands as clothing; Beanies; Caps being headwear; Hats; Scarves; Visors; Visors being headwear; Footwear; boots; Sandals; shoes; Slippers

Class 025 for Belts; Blouses; Coats; Dresses; Gloves; Hosiery; Jackets; Jerseys; Lingerie; Night gowns; Night shirts; Pajamas; Pants; Shirts; Shorts; Skirts; Socks; Sweat pants; Sweat shirts; Sweaters; Swim wear; Swim suits; T-shirts; Tank tops; Tights; Underwear; Vests; Wind resistant jackets; Wristbands as clothing; Beanies; Caps being headwear; Hats; Scarves; Visors being headwear; Footwear; boots; Sandals; shoes; Slippers Filing Basis: Section 1(b), Intent to Use: For a trademark or service mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to use the mark in commerce on or in connection with the identified goods/services in the application. For a collective trademark, collective service mark, or collective membership mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by members on or in connection with the identified goods/services/collective membership organization. For a certification mark application: As of the application filing date, the applicant had a bona fide intention, and was entitled, to exercise legitimate control over the use of the mark in commerce by authorized users in connection with the identified goods/services, and the applicant will not engage in the production or marketing of the goods/services to which the mark is applied, except to advertise or promote recognition of the certification program or of the goods/services that meet the certification standards of the applicant.

ADDITIONAL STATEMENTS Significance of wording, letter(s), or numeral(s) DENIM TEARS appearing in the mark means or signifies or is a term of art for the individual, Tremaine Emory, in the relevant trade or industry or as used in connection with the goods/services/collective membership organization listed in the application.

Miscellaneous Statement Applicant's substantive arguments and exhibits are attached hereto in PDF format.

Original PDF file: mis-645818066-20181012175105995077_._DENIM_TEARS-25__Response_to_OA.pdf Converted PDF file(s) ( 5 pages) Miscellaneous File1 Miscellaneous File2 Miscellaneous File3 Miscellaneous File4 Miscellaneous File5

SIGNATURE(S) Response Signature Signature: /John R. Sommer/ Date: 10/12/2018 Signatory's Name: John R. Sommer Signatory's Position: Attorney of record, California bar member

Signatory's Phone Number: (949) 752-5344

The signatory has confirmed that he/she is an attorney who is a member in good standing of the bar of the highest court of a U.S. state, which includes the District of Columbia, Puerto Rico, and other federal territories and possessions; and he/she is currently the owner's/holder's attorney or an associate thereof; and to the best of his/her knowledge, if prior to his/her appointment another U.S. attorney or a Canadian attorney/agent not currently associated with his/her company/firm previously represented the owner/holder in this matter: (1) the owner/holder has filed or is concurrently filing a signed revocation of or substitute power of attorney with the USPTO; (2) the USPTO has granted the request of the prior representative to withdraw; (3) the owner/holder has filed a power of attorney appointing him/her in this matter; or (4) the owner's/holder's appointed U.S. attorney or Canadian attorney/agent has filed a power of attorney appointing him/her as an associate attorney in this matter.

Serial Number: 87722501 Internet Transmission Date: Fri Oct 12 17:57:34 EDT 2018 TEAS Stamp: USPTO/ROA-XX.XX.XXX.XX-20181012175734159 551-87722501-61087954c5cd48bd835e7c5a462 0b4975eb7863d59691234ea3fd55aad92e0f785- N/A-N/A-20181012175105995077

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www.levi.com › clothing › men › shirts › levi_clothing_men_shirts Men's Shirts - Shop Cotton T-Shirts, Tank Tops, & Denim ... Find out why Levi's® shirts for men are a must-have closet staple, perfect for any outt. Browse the assortment of cotton shirts, t-shirts, tank tops, denim shirts and ... Men's Long Sleeve Shirts · Western Shirts · Graphic T-Shirts · Short Sleeve

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Rating Hours

Levi's Outlet Store at The Outlets of Orange 4.4 (142) · Men's clothing store Orange, CA · In The Outlets at Orange Open Closes 9PM · (714) 940-0689 Their website mentions t-shirts and denim ⋅ Joe's Jeans 4.3 (12) · Clothing store Costa Mesa, CA · In South Coast Plaza Open Closes 9PM · (714) 979-0221 Designer jeans & casualwear provider ⋅ DIESEL STORE COSTA MESA 4.2 (47) · Clothing store Costa Mesa, CA · In South Coast Plaza Open Closes 9PM · (714) 556-5540 Their website mentions t-shirts ⋅

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www.amazon.com › slp › denim-shirt Denim Shirt: Amazon.com Buy products related to denim shirt products and see what customers say ... It's a man's shirt but I wanted something to wear and women's clothes just aren't as ...

www.6pm.com › agave-denim-men-t-shirts Men's Agave Denim T Shirts | Clothing | 6pm 49 items - 9. Agave Denim. Bundoran Short Sleeve Crew Neck T-Shirt. $55.99MSRP: $125.00. Raw Umber Rain Wash. 2. Agave Denim. Casper. $35.99MSRP: ...

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www.buyeshirts.com › gip120 Real Denim T-Shirts - tee shirts made of jeans denim - blue ... https://www.google.com/search?rlz=1C1CHBF_enUS877US877&ei=EV5MXtPaPNrC0PEPltmm-AQ&q=denim+t-shirts&oq=denim+t-shirts&gs_l=psy-… 2/3 2/18/2020 denim t-shirts - Google Search Brand: Get In Print LLC; Style# Gip120; Men's Dark Denim Blue w/Black Ribbed Collar T-Shirt w/ blackdenim ribbed t-shirts collar. 100% Denim; This is made out of the same ...

www.nudiejeans.com › selection › tees Organic cotton t‑shirts - Nudie Jeans Sometimes all you need is a nice t-shirt. Always made with love and 100% organic cotton.