Rightsmile, Inc. (RIGH)

[Burn Notice88]

$RIGH. BUDGENIUS TRADEMARK – THE FACTS!

There has been much discussion (a mostly one-sided slant vs.) RIGH’s abandoned trademark,
here are the facts:
>>> FACT: Budgenius is officially “abandoned.” That’s not debated.

The question to ask is, can BG continue to use the TM, “Budgenius.com?”
>>> FACT: Yes, it can and here’s why:

Below is a snapshot of the Budgenius trademark.
>>> NOTE: The Type of Mark: “Service Mark.”

Here’s what the USPTO has to say about a Service Mark:

What is a service mark?
A service mark is a word, phrase, symbol or design, or a combination thereof, that identifies and distinguishes the source of a service rather than goods. The term “trademark” is often used to refer to both trademarks and service marks.
http://www.uspto.gov/faq/trademarks.jsp#_Toc275426673

If you claim rights to use a mark, you may use the "TM" (trademark) or "SM" (service mark) designation to alert the public to your claim of a “common-law” mark. No registration is necessary to use a "TM" or "SM" symbol and you may continue to use these symbols even if the USPTO refuses to register your mark. Those symbols put people on notice that you claim rights in the mark, although common law doesn't give you all the rights and benefits of federal registration.
http://www.uspto.gov/faq/trademarks.jsp#_Toc275426673
>>> FACT: Per the USPTO, BG can legally use the TM Budgenius.com.

NEXT QUESTION: Can BG’s use the symbol "®" next to Budgenius.com?
>>> FACT: Technically, No. However, there’s a little caveat in the language. Read what the USPTO has to say about the symbol "®" and how it applies to Budgenius.com. below:

>>> NOTE: The language, specifically the key words, “may not use.”

>>> NOTE: The language, does not specifically state, “can not” nor “forbidden” to use, however technically the mark is no longer active and the symbol "®" probably should not be used.

>>> NOTE: The USPTO doesn’t “forbid” or use strong language the "®" “can not be used.”

You may only use the federal registration symbol "®" after the USPTO actually registers a mark, not while an application is pending. And it may only be used on or in connection with the goods/services listed in the federal trademark registration and while the registration is still alive ( you may not continue to use it if you don’t maintain the registration or it expires).
http://www.uspto.gov/faq/trademarks.jsp#_Toc275426673

So where does BG Medical Technologies go from here?
>>> FACT: Legally, they don’t have to do anything. We’ve proven they can continue to use the TM.

>>> FACT: Technically the mark is no longer active and the symbol "®" probably should not be used.
The USPTO have bigger fish to fry than a small up-and-coming company who at one time provided the proper registration documents, and were issued a symbol "®" by the USPTO.

>>> FACT: Administratively, BG can Petition the director under TM Rule 2.146 to re-register the TM.

3. Petition to the Director under Trademark Rule 2.146 [< This is the direct link to the electronic form.]
Use this form to file a petition to the Director specifically pursuant to Trademark Rule 2.146. The petition must include a statement of the relevant facts and be accompanied by any relevant evidence as well as the required fee ($100). When facts are to be proved, the petitioner must submit proof in the form of an affidavit or declaration under 37 C.F.R. §2.20. See TMEP §1702 for general information about when a 2.146 petition is appropriate, and TMEP §1705 et seq.

http://www.uspto.gov/trademarks/teas/petition_forms.jsp

Trademark Info
Mark:
Word Mark: BUDGENIUS
Serial Number: 85581590
Registration Number: n/a
Filing Date: March 27, 2012
Abandonment Date: January 04, 2013
Goods and Services: 042. Laboratory testing services; website services; computer and technological professional services, namely, website services, online directory services, ecommerce services, social media services, online advertising, and scientific laboratory research utilizing chromatography and real-time pcr techniques for determination of compounds (known and unknown) and genetics
International Class(es): 042
Current Filing Basis: 1(b)
Original Filing Basis: 1(b)
Type of Mark: Service mark
Law Office Assigned: L30
Register: Principal
Current Location: TMEG LAW OFFICE 103 - EXAMINING ATTORNEY ASSIGNED
Current Status: ABANDONED-FAILURE TO RESPOND OR LATE RESPONSE
Date of Status: January 29, 2013
Mark Drawing Code: 4000
Live/Dead Indicator: DEAD
Goods/Services Classification
International Class # Information
042 Status: Active
First Use Anywhere: Date Not Available
First Use in Commerce: Date Not Available
Additional Info
Pseudo Mark: BUD GENIUS
Owner
Owner: BG Medical Technologies, Inc.
1702 'A' Street, Suite C
Sparks NV 89431
Legal Entity Type: Corporation
Correspondent/Attorney
Correspondent / Attorney: RAJ ABHYANKER
RAJ ABHYANKER, P.C.
1580 W EL CAMINO REAL STE 8
MOUNTAIN VIEW, CA 94040-2462