Crane USA, Inc.

Trademark Trial and Appeal Board

Aug 7, 2015

No. 86172232 (T.T.A.B. Aug. 7, 2015)

Mailed:
August 7, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Crane USA, Inc.
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Serial No. 86172232
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F. William McLaughlin of Wood Phillips Katz Clark & Mortimer, for Crane
USA, Inc.

Anthony M. Rinker, Trademark Examining Attorney, Law Office 102
(Mitchell Front, Managing Attorney).
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Before Quinn, Ritchie, and Shaw, Administrative Trademark Judges.

Opinion by Ritchie, Administrative Trademark Judge:

Crane USA, Inc., applicant herein (“Applicant”), seeks registration on the
Principal Register of the proposed mark shown below for “humidifiers for
household use,” in International Class 111:

1 Serial No. 86172232, filed on January 22, 2014, filed under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1152(b).
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Ser. No. 86172232
2

The mark contains the following description:
The mark consists of a two-dimensional depiction of a
three-dimensional housing having generally a tear shape,
a slightly offset top region terminating at an opening,
three vertically spaced circumferential lines, a round dial
with a small circle within its perimeter and an enclosed
area within which the round dial resides and bounded by
an upwardly opening U-shaped line and the lowermost
circumferential line. Color is not claimed as a feature of
the mark.

The Trademark Examining Attorney refused registration on the ground
that Applicant’s mark constitutes trade dress of a product design without a
showing of acquired distinctiveness pursuant to Trademark Act Sections 1, 2,
and 45, 15 U.S.C. §§ 1051-1052, 1127. The Examining Attorney also issued
requirements for 1) a product configuration drawing that depicts Applicant’s
mark in the drawing to include broken or dotted lines to show the position of
the mark on goods or container, 37 CFR 2.52(b)(4); 2) a “clear and concise
description of the mark” that a) indicates the mark is a three-dimensional
configuration of goods or packaging; b) specifies all elements claimed; and c)
Ser. No. 86172232
3
specifies elements not part of the mark and serves only to show position or
placement, 37 CFR 2.37; 2.52(b)(2); (b)(4); and 3) product information and
documentation regarding the applied-for mark, 37 CFR 2.61(b).
When the refusal and requirements were made final, Applicant filed a
timely appeal. Both Applicant and the Examining Attorney filed briefs, and
Applicant filed a reply brief.
Trade Dress
Product trade dress may not be registered without sufficient proof of
acquired distinctiveness. Wal-Mart Stores, Inc. v. Samara Bros., 529 US
205, 209-210, 54 USPQ2d 1065, 1066 (2000) (applicant trying to protect trade
dress of its goods must show acquired distinctiveness). The Examining
Attorney asserts that the mark Applicant is attempting to register falls under
this category, arguing that what applicant seeks to register is really its
product’s configuration.
To support this argument, the Examining Attorney submitted, with the
November 19, 2014 Final Office Action, evidence that the humidifier
Applicant seeks to register is being offered for sale at Target.Com.
Ser. No. 86172232
4

Applicant does not deny that it sells the humidifier, or that the mark it
seeks is a depiction of that product. Rather, Applicant argues in its brief, that
“[t]he fact that applicant sells such a product does not preclude applicant
from separately registering a two dimensional design.” 6 TTABVUE 6. The
issue, however, is that what Applicant seeks to register is a depiction of its
product. Applicant’s attempt to register the mark with a description of it as
“a two-dimensional depiction of a three-dimensional housing” does not alter
the likely consumer perceptions, or for that matter perceptions of
competitors, that what is claimed is the trade dress as otherwise depicted in
the drawing and the description. As our precedent dictates, “[e]ven an
application to register a configuration of a product depicts a mark in two-
dimensional form, perhaps from a view that yields a perspective of depth.”
Duramax Marine LLC v. R.W. Fernstrum & Co., 80 USPQ2d 1780, 1792
(TTAB 2006) (finding functionality not applicable to service mark).
Ser. No. 86172232
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In this regard, the Examining Attorney distinguished Registration No.
4333641, submitted by Applicant with its October 27, 2014 Response to Office
Action, which depicts “three different bus types” (as noted in the description),
for “automobile dealerships featuring buses.”

As stated by the Examining Attorney, that registration, unlike the
present applicant, is for services not goods, a distinction discussed in our
Ser. No. 86172232
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precedent, in that trade dress for services unlike for goods, may be inherently
distinctive. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 23 USPQ2d
1081, 1084 (1992) (“There is no persuasive reason to apply to trade dress a
general requirement of secondary meaning ….”); In re Chippendales USA,
Inc., 622 F.2d 1346, 96 USPQ2d 1681, 1684 (Fed. Cir. 2010) (Applicant’s
“Cuffs and Collar” mark found to be non-distinctive trade dress as of time of
registration); In re Frankish Enters. Ltd., . 113 USPQ2d 1964, 1970 (TTAB
2015) (monster truck mark found to be inherently distinctive for
entertainment services); see also In re Nett Designs Inc., 236 F.3d 1339, 57
USPQ2d 1564 (Fed. Cir. 2001) (“Even if some prior registrations had some
characteristics similar to Nett Designs’ application, the PTO’s allowance of
such prior registrations does not bind the Board or this court”).
Applicant seeks to register its mark under Section 1(b) of the Trademark
Act; § 1051(b), and does not assert any acquired distinctiveness. Accordingly,
we affirm the refusal that Applicant’s mark constitutes trade dress of a
product design without a showing of acquired distinctiveness.
The Requirements
Based on our affirmance of the trade dress refusal, we find the
requirements to be apt. In particular, since we have found that Applicant’s
mark constitutes trade dress, we affirm the requirements for 1) a product
configuration drawing that depicts Applicant’s mark in the drawing to
include broken or dotted lines to show the position of the mark on goods or
Ser. No. 86172232
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container as required by 37 CFR 2.52(b)(4); 2) a “clear and concise description
of the mark”2 that a) indicates the mark is a three-dimensional configuration
of goods or packaging; b) specifies all elements claimed; and c) specifies
elements not part of the mark and serves only to show position or placement
in accordance with 37 CFR 2.37 and 2.52(b)(2); (b)(4); and 3) the product
information and documentation regarding the applied-for mark in accordance
with 37 CFR 2.61(b).
Hence, the requirements are all affirmed.
Decision: The refusal to register on the ground that Applicant’s mark
constitutes trade dress of a product design without a showing of acquired
distinctiveness is affirmed. The requirements for 1) a product configuration
drawing that depicts Applicant’s mark in the drawing to include broken or
dotted lines to show the position of mark on goods or container; 2) a “clear
and concise description of the mark” that a) indicates the mark is a three-
dimensional configuration of goods or packaging; b) specifies all elements
claimed; and c) specifies elements not part of the mark and serves only to
show position or placement; and 3) product information and documentation
regarding the applied-for mark are all affirmed.

2 Applicant argues that the Examining Attorney did not raise this issue during
prosecution. We find that the refusal and all of the requirements were specifically
raised in the April 30, 2014 Office Action, as well as the November 19, 2014 Final
Office Action.