Brass-Craft Mfg. Co.

Trademark Trial and Appeal Board

Nov 19, 1998

EX (T.T.A.B. Nov. 19, 1998)

Hearing: Paper No.
December 17, 1997 PTH
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB 11/19/98
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Brass-Craft Manufacturing Company
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Serial Nos. 74/459,806; 74/459,808; 74/459,812;
74/459,813; and 74/463,374
_______
Cynthia B. Summerfield of Rader, Fishman & Grauer, PLLC for
In re Brass-Craft Manufacturing Company.
Caryn L. Hines, Trademark Examining Attorney, Law Office
108 (David Shallant, Managing Attorney).
_______
Before Simms, Hairston and Walters, Administrative
Trademark Judges.
Opinion by Hairston, Administrative Trademark Judge:
Brass-Craft Manufacturing Company has applied to
register, under Section 2(f) of the Trademark Act, the
asserted marks reproduced below for “appliance connectors
made of metal.”
Ser No. 74/459,806 et al.
2
Serial No. 74/459,8061 Serial No. 74/459,808
Serial No. 74/459,812 Serial No. 74/459,813
Serial No. 74/463,3742

1 Application Serial Nos. 74/459,806; 74/459,808; 74/459,812; and
74/459,813 were filed November 19, 1993; alleging dates of first
use and first use in commerce of November 1, 1988. The wording
“USE WITH” and “SC OR RSC SERIES GAS CONNECTOR”; ”USE WITH” and
“SD SERIES GAS VALVE”; “USE WITH” and “SL SERIES GAS VALVE”; and
“USE WITH” and “SC SERIES GAS VALVE,” respectively, has been
disclaimed.
2 Application Serial No. 74/463,374 was filed November 26, 1993;
alleging dates of first use and first use in commerce of November
1, 1988. The wording “USE WITH” and “SD OR RSD SERIES GAS
CONNECTOR” has been disclaimed.
Ser No. 74/459,806 et al.
3
In each application, registration has been finally
refused under Sections 1, 2 and 45 of the Trademark Act on
the ground that the matter sought to be registered does not
function as a mark. Applicant has appealed from the
refusal in each application. Briefs have been filed and an
oral hearing was held. Because the issue involved in the
five applications is the same, and the records are
essentially identical, we are rendering our decision as to
these applications in a single opinion.
Applicant, in urging reversal of the refusal to
register, maintains that the asserted marks are capable of
identifying and distinguishing applicant’s goods as
evidenced by its registrations on the Supplemental Register
for the identical marks.3 Further, applicant contends that
it has used and promoted the asserted marks in such a
manner that they have come to identify and distinguish
applicant’s metal appliance connectors. In particular,
applicant points out that the wording in each of the

3 Although applicant stresses that its asserted marks are capable
of functioning as marks, capability is the standard to determine
registrability on the Supplemental Register. All of applicant’s
applications, however, seek registration on the Principal
Register. In addition, we should note that registrations on the
Supplemental Register are entitled to no presumptions of
validity. In re Federated Department Stores, Inc., 3 USPQ2d 1541
(TTAB 1987).
Ser No. 74/459,806 et al.
4
asserted marks appears in a distinctive blue color against
a contrasting white background; that the asserted marks are
clearly visible and appear prominently on the packaging for
the goods; and that applicant uses the TM notation, thereby
claiming the matter sought to be registered as trademarks.
In addition, applicant offered the declaration of
Leonard Andrus, its vice-president for marketing and sales,
wherein he states that applicant spends approximately
$600,000 annually in advertising its products which bear
the matter sought to be registered. Accompanying Mr.
Andrus’ declaration are excerpts from applicant’s product
catalogs, and promotional material. Also, applicant
offered the declarations of five managers of stores which
sell plumbing supplies. Each of these declarants states
that:
In the metal gas connector industry, the marks
attached as Exhibits A-E, and more particularly
the geometric shapes [the designs of a circle,
square and triangle] alone or in combination
with the language contained therein, have come
to be associated with metal gas connectors,
valves and fittings from Plumb Shop/Brass-Craft
Manufacturing Company, of Novi, Michigan, and
identify Plumb Shop/Brass-Craft’s metal gas
connectors, valves and fittings and distinguish
them from those of others.
The Examining Attorney, on the other hand, argues that
the asserted marks “are comprised of common geometric
shapes used as carriers for informational or instructional
Ser No. 74/459,806 et al.
5
statements and as such, do not function as marks.” (Brief,
p. 1.) While maintaining that the matter sought to be
registered in each case does not function as a mark, the
Examining Attorney, during the prosecution of these
applications and at the oral hearing, stated that the
evidence of acquired distinctiveness was sufficient,
assuming that the matter sought to be registered was
capable of functioning as a mark. The Examining Attorney’s
statements are somewhat confusing in that they give the
impression that acquired distinctiveness in the traditional
sense is an issue herein.4 However, it is clear that is not
the case. The Examining Attorney’s refusal in each case is
that the matter sought to be registered does not function
as a mark and she considered applicant’s evidence bearing
on the use and promotion of the asserted marks (as she
should have) in determining whether the asserted marks
function as such. We should add that we do not view the
Examining Attorney’s statements concerning acquired
distinctiveness as a concession that the asserted marks
function as such.

4 By traditional sense, we mean acquired distinctiveness with
respect to marks which fall under the proscription of Section
2(e)(1).
Ser No. 74/459,806 et al.
6
Also, we should point out that in addition to its
registrations on the Supplemental Register, applicant is
the owner of a registration on the Principal Register for
the word mark PLUMB SHOP for plumbing fittings and
supplies.5 However, the fact that the matter sought to be
registered in each of these cases includes applicant’s
PLUMB SHOP mark does not make the entire matter, i.e., the
wording along with the design, a trademark.
A critical element in determining whether matter
sought to be registered is a trademark is the impression
the matter makes on the relevant public. Thus, in a case
such as this, the critical inquiry is whether these
asserted marks would be perceived as source indicators or
merely as informational or instructional material as the
Examining Attorney maintains. See In re Volvo Cars of
North America Inc., 46 USPQ2d 1455 (TTAB 1998). In order
to assess the commercial impact created by the matter
sought to be registered here, we look to the specimens and
other materials which show how the asserted marks are used
in the marketplace. In re Volvo, supra.
Reproduced below is a portion of the packaging bearing
one of the asserted marks. The packaging bearing the other
asserted marks is very similar.

5 Registration No. 854,493 issued August 13, 1968; renewed.
Ser No. 74/459,806 et al.
7
We find that the primary significance of the matter
sought to be registered, as used by applicant, and as
likely perceived by purchasers and prospective purchasers,
is merely that of informational material. In particular,
the wording informs consumers concerning which of
applicant’s metal appliance connectors may be used with its
PLUMB SHOP valves. Although applicant maintains that the
wording in each of the asserted marks is set off with a
distinctive blue color against a contrasting white
background, the drawings for the asserted marks are not
Ser No. 74/459,806 et al.
8
lined for color. Further, the designs, which are common
geometric shapes, identify the kind of appliance (e.g.,
clothes dryer, furnace, or range) with which applicant’s
metal connectors may be used. We note in this regard that
a guide for matching applicant’s metal connectors with the
appropriate appliance is displayed along with its products.
The guide is reproduced below.
In view of the foregoing, we find that the matter
sought to be registered in each application does not
function as a mark, but simply serves to convey useful
information regarding applicant’s metal appliance
connectors to purchasers and prospective purchasers. In
reaching our decision, we have, of course, considered
applicant’s promotional efforts and the store managers’
Ser No. 74/459,806 et al.
9
declarations. In evaluating the significance of
applicant’s advertising or promotional figures, which are
offered as evidence of acquired distinctiveness, we must
consider not only the extent of advertising or promotion,
but also whether the asserted marks have been used therein
in such a manner as to create in the minds of the
purchasing public an association of the asserted marks with
applicant and metal appliance connectors. See In re Semel,
189 USPQ 285 (TTAB 1975). In each of these cases,
applicant made of record an advertising brochure, gas
connector sizing guide, in-store display, installation
guide, and catalog. However, in none of these materials is
the matter sought to be registered used in the manner of a
mark. Rather, it is PLUMB SHOP appearing alone which is
used in the manner of a mark and would be perceived as such
by purchasers and prospective purchasers of applicant’s
metal appliance connectors. Also, the store managers’
declarations are of limited probative value for two
reasons. First, there is nothing in the record which shows
that the declarants are qualified to speak on behalf of the
“metal gas connector industry” with regard to how the
asserted marks are perceived. Second, and more
importantly, the opinions of the store managers are
unconvincing that purchasers as distinguished from
Ser No. 74/459,806 et al.
10
retailers and dealers actually recognize the matter sought
to be registered as applicant’s marks. See In re Semel,
supra. In short, the Board is not persuaded by the
evidence presented herein that the asserted marks do in
fact function as marks.
Finally, applicant’s use of the notice indicating
that the asserted marks are trademarks of applicant does
not transform these designations into trademarks indicating
source or origin. In re Volvo Cars of North America, supra
and cases cited therein.
Accordingly, we agree with the Examining Attorney that
in each case the matter sought to be registered, as used by
applicant, does not function as a trademark for applicant’s
metal appliance connectors.
Ser No. 74/459,806 et al.
11
Decision: The refusal to register in each application
is affirmed.
R. L. Simms
P. T. Hairston
C. E. Walters
Administrative Trademark
Judges, Trademark Trial and
Appeal Board