No. 85813275 (T.T.A.B. Dec. 4, 2014)

Daniel Cohen

Trademark Trial and Appeal BoardDec 4, 2014

No. 85813275 (T.T.A.B. Dec. 4, 2014)

This Opinion is Not a Precedent of the TTAB Mailed: December 4, 2014 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Daniel Cohen _____ Serial No. 85813275 _____ Erik M. Pelton of Erik M. Pelton & Associates, PLLC, for Daniel Cohen. Ellen Awrich, Trademark Examining Attorney, Law Office 116, Michael W. Baird, Managing Attorney. _____ Before Quinn, Bucher and Wolfson, Administrative Trademark Judges. Opinion by Bucher, Administrative Trademark Judge: Daniel Cohen (“Applicant”), a resident of Florida, seeks registration on the Supplemental Register of the mark STEAM CAR WASH (in standard character format) for “online retail store services featuring car cleaning and vacuuming equipment” in International Class 35.1 1 Application Serial No. 85813275 was filed on the Principal Register on December 31, 2012, based upon Applicant’s claim of first use anywhere and use in commerce since at least as early as 2008. On May 28, 2013, Applicant amended the application to seek registration on the Supplemental Register. Serial No. 85813275 - 2 - The Trademark Examining Attorney has refused registration of Applicant’s mark under Trademark Act Section 23(c), 15 U.S.C. § 1091(c), because the proposed mark is a generic term when applied to online retail store services featuring car cleaning and vacuuming equipment. After the Trademark Examining Attorney made the refusal final, Applicant appealed and requested reconsideration. After the Examining Attorney denied the request for reconsideration, the appeal was resumed. Applicant and the Trademark Examining Attorney filed briefs in the case. We affirm the refusal to register. The Evidence The Trademark Examining Attorney relies upon the following definitions of the constituent terms of Applicant’s proposed mark: steam noun 2 a : the invisible vapor into which water is converted when heated to the boiling point 2 car wash noun 1. a place or structure having special equipment for washing automobiles. 2. the washing of an automobile: The service station is offering free car washes to draw customers. 3 Applicant’s services, recited as “online retail store services featuring car cleaning and vacuuming equipment,” are demonstrated further with the application’s specimen of record showing online promotional materials for the Super Max 12820 2 http://www.merriam-webster.com/dictionary/steam, as accessed by the Trademark Examining Attorney on April 15, 2013. 3 http://dictionary.reference.com/browse/carwash, Drawn from the RANDOM HOUSE DICTIONARY (2013), as accessed by the Trademark Examining Attorney on April 15, 2013. Serial No. 85813275 - 3 - “Steam Car Wash Machine” (at right). At no point in the prosecution of this application has Applicant explained the relationship between himself and Daimer Industries – the manufacturer of the involved 4 products that he sells. The Trademark Examining Attorney has provided other Internet evidence detailing this category of Daimer’s pictured steam pressure machines: Steam Car Wash Machines Owning a car involves maintaining it on a regular basis and keeping it clean and sparkling. However, the hectic pace of life leaves people with little time to spend on cleaning their cars. Now, this is definitely good news for auto detailing professionals who have experienced an unprecedented increase in business and profits. To ensure that the car detailing business stands a class apart from competition, Daimer® offers auto detailers powerful and advanced car wash equipment designed to simplify the toughest mobile car wash applications. The Best Ever Steam Car Washing Machines and Car Wash Chemicals In addition to technologically advanced Super Max™ series of steam car wash equipment, Daimer® also offers green chemicals specially formulated for car detailing applications. With an extensive range of portable car wash machines and green chemicals, auto detailers can easily find the perfect products for their specific needs. In addition to solid construction and high-grade components, these portable car wash machines score high in terms of cleaning technologies and versatility. The Fastest Selling Portable Car Wash Systems Daimer®'s mobile car wash machines including the Super Max™ 6120SCW and 6230SCW have been specifically designed for car washing purposes and thus feature the perfect combination of features needed to get clean and gleaming vehicle exteriors. The notable aspects of these [sic] portable car wash equipment include: • Low flow rates: These steam car wash machines feature flow rates as low as 0.5 gpm that offer multiple advantages for car wash professionals. Low flow rates cut down water consumption and make the car wash system ideal for use on delicate components, such as automobile engines. • Moderate pressure levels: Extremely high pressure levels of conventional power washers can damage vehicle exteriors. Thankfully, the Super Max™ steam car wash equipment come with moderate pressure levels of 1000 psi that are absolutely safe for use on vehicles. In fact, car wash experts note that pressure levels of up to 1500 psi help effectively eliminate dirt and grease deposits without damaging vehicle surfaces. • High steam temperatures: To efficiently dissolve and remove tough deposits, such as grime, mud, grease, tree sap, bird discharge and squashed bugs, from vehicle exteriors, steam car wash machines must be equipped with the power of heat. The Super Max™ series of portable car wash equipment generate hot steam at temperatures as high as 300°F to enable easy elimination of the toughest deposits from car surfaces. The high temperatures also make the machines suitable for melting away the snow that blankets vehicles during the cold months. 4 http://tsdr.uspto.gov/documentviewer?caseId=sn85813275&docId=SPE20130103065114#docIndex=17 &page=1, http://www.steamcarwash.com/Products/Steam-Car-Wash-Machine-Pressure-Washer __DAIMER-12820.aspx, and http://www.daimer.com/pressure-washers/super-max-12820.htm. Serial No. 85813275 - 4 - Steam Car Wash Equipment: Perfect for Auto Detailers Professionals engaged in vehicle detailing often need to work non-stop for long hours. To help these experts maintain maximum productivity and avoid unnecessary delays, the Super max™ line of steam car wash system can run for 10 hours using a 300 gallon water tank which when filled allows users to work non-stop. Another exciting aspect of this steam car wash machine is that it is versatile enough to maintain multiple surfaces, such as painted exteriors, windshields, wheels, and tires. For the best ever cleaning results, always use the steam car wash system in combination with the Eco-Green® range of green chemicals available from Daimer®. All these green chemicals including the fast-selling Eco-Green® Heavy Duty Car Wash and Truck Wash are eco-friendly, non-toxic, and readily biodegradable. Daimer®'s revolutionary green chemicals and steam car wash machine are sure to take your car wash business to new heights. 5 Three Must-Have Things For A Steam Car Wash Machine By: Lauren Zwiebel Courtesy of Daimer Industries Inc. Published: Dec. 10, 2012 A steam car wash is considered one of the most effective ways to clean an automobile. Steam is kind of a panacea for all sorts of cleaning maladies. Steam can dissolve dirt, remove stains, and help remove many impure build-ups and substances. However, the high temperature output of a steamer is not the only thing you require for steam car wash. What you need for effectively cleaning a vehicle are three things, namely, dry steam output, attached vacuum, and anti-bacterial technology. Dry steam output A number of companies claim to offer steam cleaning machines with dry steam or dry vapor output. What exactly is meant by dry steam or dry vapor? It means that water is heated to such a level that the liquid water content at that stage is less than 5 percent of the overall volume. The rest of the content is in the state of steam or vapor. What do the thermodynamics have to do with steam car wash? Steamers with their obvious higher temperature clean faster and more efficiently. Now, as the liquid water content transferred onto the vehicle surface is low, the cleaning process becomes fast. Moreover, all kinds of dirt tend to drift towards wet surfaces. If a surface becomes dry quickly, it is likely to remain clean for a long time. So, steamers with dry steam output offer multiple benefits for a steam car wash business. … 7 5 http://www.daimer.com/car-detailing-mobile-car-wash/, as accessed by the Trademark Examining Attorney on April 15, 2013. 6 http://www.sfgate.com/business/prweb/article/Daimer-Unveils-Auto-Detailing-Steam-Car- Wash-4169424.php, as accessed by the Trademark Examining Attorney on June 7, 2013. 7 http://www.environmental-expert.com/articles/three-must-have-things-for-a-steam-car- wash-machine-337160, as accessed by the Trademark Examining Attorney on June 7, 2013. We note that this online article was placed in “Environmental Expert” by Daimer Industries, Inc. Daimer Unveils Auto Detailing Steam Car Wash Machine With Fifteen Times More Pressure Than Vapor Steam Cleaner Equipment Powerful auto detailing machines simplify time-consuming and labor-intensive exterior car cleaning applications for any serious car wash professional. New steam pressure washers are specifically designed car detailing and cleaning cars more effectively than vapor steam cleaners. Woburn, MA (PRWEB) January 05, 2013 Daimer Industries, Inc.®, the global leading American brand of portable car wash and other industrial cleaner equipment, including durable carpet steam cleaner systems, popular steam car wash machines, a variety of industrial floor cleaning machines, and hundreds of different models sold to customers spanning over 240 nations worldwide, is now marketing the Super Max™ 6120SCW to auto detailers and car dealers seeking better alternatives than extremely low moisture vapor steam cleaners. The 6120SCW is low flow auto detailing equipment tailored for car cleaning applications… 6 Serial No. 85813275 - 5 - In addition to Applicant’s uses and Daimer’s promotional pieces, the Trademark Examining Attorney has placed into the record various screen prints drawn from industry articles, the websites of several third-party manufacturers (an industry particularly strong in Korea) and of online merchants advertising to auto detailers and others in the car wash business in the United States, which advertisements uniformly emphasize the “green” or ecological features of the technology, i.e., steam pressure washers providing quick and efficient cleaning of the exterior of cars using no chemicals and substantially no wastewater: The Future of Car Wash: Steam Car Wash system (55-sec. video of use of SpeedSteam 2500 uploaded to YouTube on September 24, 2007) 8 As being an originator of steam carwash machine, we have been asked frequently to specify difference with other copycat machines. This will help avoid any type of Buying Mistakes caused by mislead and confusions [sic]. First, STEAMJET RV10 and FX series are developed and designed for high quality steam carwash & detail. 9 8 https://www.youtube.com/watch?v=pyo99aHr3iY, as accessed by the Trademark Examining Attorney on April 15, 2013. We note that this video was uploaded to YouTube in September 2007, a date before Applicant’s first claimed date of use. 9 http://steamjetinc.com/html/product9_1.html, as accessed by the Trademark Examining Attorney on April 15, 2013. Serial No. 85813275 - 6 - 10 Optima DMF Steam Car Wash Machine Optima DMF Steam Car Wash Machine Now Available in USA. Wash a car with only 1 gallon of water and produce zero waste-water. The Optima DMF Steam Car Wash Machine is a revolutionary new and environmentally friendly steam machine. Using the latest in steam technology, the Optima DMF Steam Car Wash Machine can quickly and effectively remove dirt, stains, grease, odors and other contaminants from a variety of surfaces. Steam car wash is the process of using steam vapor to clean a car’s exterior and interior. For decades steam has been a critical component of the cleaning industry due to its effectiveness and sterilizing power. Today, steam is being applied to the car wash industry. ETS is leading the way by introducing the first commercial grade steam cleaner specifically tailored for washing cars. 11 10 http://www.sjecorp.com/system/usSteamcarwashConcept, as accessed by the Trademark Examining Attorney on April 15, 2013. 11 http://etscompany.com/wordpress/pressure-washer-equipment/steam-car-wash-machine/, Serial No. 85 Steam can c Have you ev clean and yo Idromatic is the clients s more technic If you want m water cleane as access Video pla Note: S headqua Steamer the same 12 http:/ Examini 13 http:/ Examini 813275 lean your car as er though [sic] a u do not have to very close to all ure to have ever al advice. ore information rs please conta ed on June ced by, htt JE Corp. (a rtered in B icas. Hence mobile car /www.idrom ng Attorney /www.meni ng Attorney nothing else. bout the steam c use additional its customers an ything at their dis about steam ca ct Idromatic toda 7, 2013 by p://www.ste .k.a. 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(w d has offic wash mach r_wash.htm ar-wash.htm d in an ecologic ofessional servi and also a quick al pressure was ey. ebsite at f es in Seoul ines in the l, as acc l, as acc al way, you can ce for pressure w fixing when the hers, diesel fired ootnote 10, , is the par se two entr essed by essed by have your car a ashers which m situation also re boilers, high pr supra), whi ent compa ies appear the Tradem the Tradem lways akes quires essure 12 13 ch is ny of to be ark ark Serial No. 85813275 - 8 - 14 SP7000 Steam Carwash Machine cleans dusts and oil stain deposited on a car with high pressure and high temperature steam (8kg/cm2) generated by 5KW power of electric steam generator. As long as water is supplied continuously, it is capable of continuous car washing with only once operation. SP7000 Electric Steam Carwash Machine is a model available in indoor or power supplied places such as a car wash place or a car detailing shop. In addition, hot steam serves a double purpose accompanying sterilization effect. Compared with the traditional tunnel type carwash machine having required considerable installation and maintenance cost, our SP7000 electric steam carwash machine guarantees inexpensive and innovative space saving. We recommend SP7000 steam carwash machine to customers who want a new car washing solution positively. 15 Decision Marks “capable of distinguishing the applicant’s goods or services” are eligible for registration on the Supplemental Register. 15 U.S.C. § 1091(c). By contrast, “[g]eneric terms are common names that the relevant purchasing public 14 http://www.meguiarsonline.com/forums/showthread.php?5443-Steam-Car-Wash, as accessed by the Trademark Examining Attorney on June 7, 2013. 15 http://7carwash.com/new/products/steam_car_wash_machine_sp7000.html, as accessed by the Trademark Examining Attorney on June 7, 2013. Serial No. 85813275 - 9 - understands primarily as describing the genus of goods or services being sold. They are by definition incapable of indicating a particular source of the goods or services.” In re Dial-A-Mattress Operating Corp., 240 F.3d 1341, 57 USPQ2d 1807, 1810 (Fed. Cir. 2011) (citations omitted). The ultimate test for determining whether a term is generic is the primary significance of the term to the relevant public. See Section 14(3) of the Act. See also In re American Fertility Society, 188 F.3d 1341, 51 USPQ2d 1832 (Fed. Cir. 1999); Magic Wand Inc. v. RDB, Inc., 940 F.2d 638, 19 USPQ2d 1551 (Fed. Cir. 1991). The Trademark Examining Attorney bears the burden of making a “strong” showing, with “clear evidence,” that the applicant’s proposed mark is generic. In re Merrill Lynch, Pierce, Fenner and Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141 (Fed. Cir. 1987). See also In re K-T Zoe Furniture, Inc., 16 F.3d 390, 29 USPQ2d 1787, 1788 (Fed. Cir. 1994). “[D]oubt on the issue of genericness is resolved in favor of the applicant.” In re DNI Holdings Ltd., 77 USPQ2d 1435, 1437 (TTAB 2005). Registration is properly refused if the proposed mark is generic for any of the services identified in a particular class. In re Analog Devices Inc., 6 USPQ2d 1801, 1810 (TTAB 1988), aff’d, 10 USPQ2d 1879 (Fed. Cir. 1989). We must make a two-step inquiry to determine whether STEAM CAR WASH is generic: First, what is the genus (category or class) of goods or services at issue? Second, is the term sought to be registered understood by the relevant public primarily to refer to that genus of goods or services? H. Marvin Ginn Corp. v. Serial No. 85813275 - 10 - International Ass’n of Fire Chiefs, Inc., 782 F.2d 987, 228 USPQ 528, 530 (Fed. Cir. 1986). As to the first step of the inquiry, we find that the genus or category of services can be drawn directly from Applicant’s recitation of services, i.e., “online retail store services featuring car cleaning and vacuuming equipment.” See Magic Wand Inc., 19 USPQ2d at 1551 (“a proper genericness inquiry focuses on the description of services set forth in the certificate of registration,” or, in this case, the involved application). Applicant argues at length that it is seeking to register STEAM CAR WASH for services, not goods. However as noted by the Trademark Examining Attorney, it is well settled that if the term “Steam Car Wash” identifies a key aspect of Applicant’s services, i.e., the name of the goods sold through Applicant’s retail store services, the term is generic for the online retail sales of steam car wash machines. That is, a term that names the central focus or subject matter of the services is generic for the services themselves. In re Tires, Tires, Tires, Inc., 94 USPQ2d 1153 (TTAB 2009) (finding designation TIRES TIRES TIRES generic for retail stores that sell tires); In re Lens.com Inc., 83 USPQ2d 1444 (TTAB 2007) (finding LENS generic for retail stores featuring contact lenses). Moreover, although Applicant raises questions about whether the term “steam car wash” is a large enough category to include his “car vacuuming equipment”(and we believe it is), even if a term is generic for some of the goods or services listed in an application, “registration is properly refused.” In re Analog Devices Inc., 6 Serial No. 85813275 - 11 - USPQ2d at 1810 (holding ANALOG DEVICES generic for a variety of data communications devices); In re Log Cabin Homes Ltd., 52 USPQ2d 1206, 1209-10 (TTAB 1999) (holding LOG CABIN HOMES generic for architectural design of buildings and retail outlets featuring kits such houses), citing to In re Northland Aluminum Products, 777 F.2d 1556, 227 USPQ 961 (Fed. Cir. 1985) (holding BUNDT generic for cake mix). As to the second step of our inquiry, it also seems clear that the “relevant public” consists of auto detailers and others in the car wash business. Evidence of this relevant public’s understanding of the term at issue may be obtained from any competent source, including testimony, surveys, dictionaries, trade journals, newspapers, and other publications. In re Northland Aluminum Products, Inc., 227 USPQ at 963 (“Evidence of the public’s understanding of the term may be obtained from any competent source, such as consumer surveys, dictionaries, newspapers and other publications.”). The question before us, then, is whether the combined phrase “Steam Car Wash” in the context of the online promotion and sales of car cleaning equipment would be understood by auto detailers and others in the car wash business to refer to the subject of such services, namely, car cleaning equipment that uses steam to wash cars. The evidence of record confirms that manufacturers and merchants in the same business as Applicant do indeed advertise their cleaning equipment online using the term “steam car wash” to reach out to auto detailers and others in the car wash business. Without question, the Trademark Examining Attorney has made a Serial No. 85813275 - 12 - “strong” showing, establishing by clear evidence that the wording “steam car wash” is a phrase that names the “central focus” or “key aspect” of Applicant’s services, and hence it is a generic term. Cf. A.J. Canfield Co. v. Honickman, 808 F.2d 291, 1 USPQ2d 1364, 1365 (3d Cir. 1986) (holding CHOCOLATE FUDGE generic for diet sodas); In re Cent. Sprinkler Co., 49 USPQ2d 1194, 1199 (TTAB 1998) (holding ATTIC generic for automatic sprinklers for fire protection used primarily in attics); In re Reckitt & Colman, Inc., 18 USPQ2d 1389 (TTAB 1991) (finding PERMA PRESS generic for a stain remover specifically designed for the category of permanent press garments). The examples that the Trademark Examining Attorney has placed into the record show that the designation “steam car wash” is a generic “name” that “tell[s] you what the thing is.” In re Abcor Development Corp., 588 F.2d 811, 200 USPQ 215, 219 (CCPA 1978) (Rich, J., concurring). Contrary to Applicant’s contention in his brief, this conclusion is much more than simply an “abstract assertion.” As seen above, “steam car wash” names the primary thing sold at Applicant’s online retail stores. Nonetheless, Applicant argues that many of these websites use “the phrase ‘steam car wash’ in conjunction with another word such as … ‘steam car wash machine,’ or ‘steam car wash system,’ because ‘steam car wash,’ by itself, does not mean ‘a type of machine that uses steam to clean cars’.” We disagree with this reasoning. Simply because the term “steam car wash” is often followed by a noun such as “machine” or “system” does not obviate the statutory bar grounded in genericness: Serial No. 85813275 - 13 - Here, we recognize that applicant’s mark does not present the classic case of a generic noun, but rather a generic adjective. In this case, because the term ATTIC directly names the most important or central aspect or purpose of applicant’s goods, that is, that the sprinklers are used in attics, this term is generic and should be freely available for use by competitors. In re Cent. Sprinkler Co., 49 USPQ2d at 1199. Applicant also relies upon negative evidence by conducting searches on a large number of electronic resource materials before concluding that the fact he found no dictionary entries for the three-word phrase “steam car wash” is persuasive of that term’s non-genericness.16 However, the fact that a term is not found in the dictionary is not controlling on the question of registrability. In re Gould Paper Corp., 834 F.2d 1017, 5 USPQ2d 1110 (Fed. Cir. 1987) (holding SCREENWIPE generic for television and computer screen cleaning wipes); In re National Shooting Sports Foundation, Inc., 219 USPQ 1018 (TTAB 1983) (holding SHOOTING, HUNTING, OUTDOOR TRADE SHOW AND CONFERENCE generic name for conducting and arranging trade shows in hunting, shooting, and outdoor sports products field); In re Orleans Wines, Ltd., 196 USPQ 516 (TTAB 1977) (holding BREADSPRED generic for jellies and jams). Applicant also argues that other generic terms are certainly available for use by Applicant’s competitors. A review of the materials reproduced above reveals that Applicant, his manufacturer (Daimer) and their competitors reference their respective products generically by a myriad of terms including car pressure 16 See Applicant’s Exhibits C-D and G-J. Serial No. 85813275 - 14 - washers, pressure cleaners, steam car washers, steam power washers, steam auto washing machines, electric vapor cleaners, steam pressure washers, car wash machines, steam car wash machines, steam cleaning machines, wet steam industrial pressure washers, commercial steam car washing (or wash) machines, auto detailing machines, vehicle (or auto or car) detailing systems, pressure washing systems, car cleaning systems, and the like. However, the Trademark Examining Attorney need not establish that “steam car wash” is the sole or even the most frequently used generic term for the goods that are the focus of Applicant’s online retail services. She need only show that such term is indeed a generic term. The fact that other generic terms may also be used to reference the genus of Applicant’s services is immaterial. In fact, it is well settled in this regard that a service may have more than one name in a given category, and that all of the generic names for a service belong in the public domain. See In re Sun Oil Co., 426 F.2d 401, 165 USPQ 718, 719 (CCPA 1970) (Rich, J., concurring) (CUSTOM-BLENDED unregistrable for blended gasoline). See also, Roselux Chemical Co., Inc. v. Parsons Ammonia Co., Inc., 299 F.2d 855, 132 USPQ 627, 632 (CCPA 1962) (SUDSY AMMONIA unregistrable for aqua ammonia containing synthetic detergent; “there is no legal foundation … that a product has only one [generic or] common descriptive name”); In re Eddie Z’s Blinds & Drapery Inc., 74 USPQ2d 1037, 1042 (TTAB 2005) (BLINDSANDDRAPERY.COM generic for selling of blinds, draperies, and related items; “that there may be other generic terms that Serial No. 85813275 - 15 - are functionally equivalent to [the term at issue] … does not make that term any less generic”). Applicant, in his brief, argues as follows: Applicant’s STEAM CAR WASH mark creatively suggests that Applicant’s website at www.steamcarwash.com is an imaginary online car wash. … Overwhelming evidence shows that the relevant public understands a “car wash” to be an area or building with equipment for washing cars, an event at which people wash cars, or the act of washing a car. … Thus, when considered in connection with applicant’s recited online store services featuring car cleaning and vacuuming equipment, Applicant’s STEAM CAR WASH mark is suggestive of an online car wash that uses steam or is named “Steam.” Instead of considering Applicant’s STEAM CAR WASH mark in connection with the recited services, the Examining Attorney assumes, without supporting clear evidence, that the genus of Applicant’s services is “a type of machine which uses steam to wash cars.” … However, the genus of Applicant’s services is not so narrow, but rather encompasses car cleaning equipment, car vacuuming equipment, and the online retail services thereof. When considered in connection with these goods and services, Applicant’s STEAM CAR WASH mark is suggestive of an imaginary online car wash, which could be a place, event, or act …; it is not generic for Applicant’s services. As noted earlier, a designation that names the central product sold by an online retail store is generic for that retail store service. We see that interpretation as better representing the most persuasive position of the Trademark Examining Attorney – not a suggestion that Applicant may be operating a virtual or “imaginary” car wash. Contrary to Applicant’s contentions in his final brief, based upon this entire record, we retain no doubt as to how the relevant public will Serial No. 85813275 - 16 - understand the term “Steam Car Wash” in the context of Applicant’s online retail store services. In conclusion, we agree with the Trademark Examining Attorney that members of the relevant purchasing public, including auto detailers and others in the car wash business, understand STEAM CAR WASH as referring to the category of online retail store services featuring the type of car cleaning equipment offered by Applicant. Accordingly, the proposed mark is generic for the recited services. Decision: The refusal to register Applicant’s mark STEAM CAR WASH as generic for the recited services under Section 23(c) of the Lanham Act is hereby affirmed.