Dayco Products, Inc.v.Aquapore Moisture Systems, Inc.

Trademark Trial and Appeal Board

Sep 3, 1998

No. 91099974 (T.T.A.B. Sep. 3, 1998)

THIS DISPOSITION IS
NOT CITABLE AS PRECEDENT OF THE TTAB SEPT 3, 98
Paper No. 23
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
______
Dayco Products, Inc.
v.
Aquapore Moisture Systems, Inc.
_____
Opposition No. 99,974
to application Serial No. 74/557,819
filed on August4, 1994
_____
Reuben Wolk for Dayco Products, Inc.
Marvin Jacobs of Koppel & Jacobs for Aquapore Moisture
Systems, Inc.
______
Before Cissel, Hanak and Hairston, Administrative Trademark
Judges.
Opinion by Cissel, Administrative Trademark Judge:
Applicant filed the above-referenced application to
register the mark “QUICK CONNECT” on the Principal Register
for “Non-metal couplings for watering hose ends,” in Class
17. The basis for the application was applicant’s assertion
that it possessed a bona fide intention to use the mark on
these goods in commerce.
Following publication of the mark in the Official
Gazette, a timely Notice of Opposition was filed by Dayco
Products, Inc. on December 4, 1995. As grounds for
Opposition No. 99,974
2
opposition, opposer alleged that the term sought to be
registered is unregistrable because it is “a generic and
common term for the product…” specified in the application.
Opposer stated that it is also a variant or abbreviation of
other terms, such as “quick connector” and “quick
connected,” which have been extensively used by opposer and
by others in the trade.
Applicant’s answer to the Notice of Opposition denied
the essential allegations of opposer.
A trial was conducted in accordance with the Trademark
Rules of Practice, but neither party took testimony.
Opposer bases its case on materials it submitted with
two notices of reliance. The first of these was filed under
Trademark Rule 2.122(d) on February 10, 1997. It covered
twenty-two United States patents, five of which had been
assigned to opposer. These patents show the terms “quick
connect,” “quick connect-disconnect,” “quick connector,” and
“quick connect connector” used in reference to various
couplings and related products.
Typical examples are as follows: Patent No. 4,749,214
is titled “QUICK CONNECT FLUID COUPLING.” The abstract
describes the invention as “(a) quick connect fluid
coupling, and more particularly, a quick connect fluid
coupling having a minimum number of parts, which can be
quickly assembled…" Patent No. 4,813,716 is for a “QUICK
Opposition No. 99,974
3
CONNECT END FITTING.” The invention is further described as
relating to “end fittings which may be quickly and easily
attached to and detached from the end of a tube or hose,
with minimum effort.” This device is also referred to as a
“quick connect/disconnect end fitting.” Patent No.
4,819,908 is for a “QUICK CONNECT FLUID COUPLING.” Patent
No. 4,915,136 identifies the invention as “a quick connect
assembly.” Patent No. 4,936,544 is for a “SWIVELABLE QUICK
CONNECTOR.” The abstract describes the invention as a
“swivelable quick connect assembly.” Patent No. 5,046,763
is for a “QUICK CONNECT HOSE COUPLING ASSEMBLY.” Patent No.
5,044,401 is for an “INTEGRAL VALVE AND SEAL FOR A QUICK
CONNECT COUPLING.” The text of the patent states that
“(t)he present invention relates generally to quick connect
and disconnect fluid couplings… Quick connect couplings are
particularly useful and well-known in the fluid handling
art. For example, quick connect couplings are commonly used
to join two or more hose sections together in a fluid-tight
manner… the need has long existed for a simple, inexpensive
and reusable valve mechanism for quick connect couplings.”
This patent goes on to use the term “quick connect coupling”
nineteen more times in reference to the invention.
The second Notice of Reliance, filed under Trademark
Rule 2.122(e) on the same day as the opposer’s first notice,
was an attempt to introduce Exhibits A though I. All but
Opposition No. 99,974
4
the last of these exhibits are copies of pages from various
catalogs and price lists of manufacturers of couplings.
Some are from opposer and some are from other manufacturers.
Some of these materials bear dates and others do not. They
refer to a “Quick Connect” coupling, “quick connects,”
“Quick Connector” fittings, “quick connectors,” “KWIK-
CONNECT COUPLINGS,” and “quick disconnect” couplers.
The last of these exhibits, Exhibit I, is a group of
copies of pages from the 1995 edition of the Thomas
Register. They show use of the term “quick connect” in
reference to hose couplings. Under the heading “Couplings,
hose,” there are multiple references to “Quick Disconnect
Connectors,” and several of the listings refer to “quick
connectors” as well. For example, Sudy Corporation’s “Huron
Quick Connectors. Metal or Plastic. Standard or Custom-
Designed”; “Twenty First Century/Hydra Shield…(Hydrant Quick
Connect)”; “Rogan and Stanley…hoses, couplings, quick
connect couplings and fittings…”;
In fact, there is a separate heading in the Thomas
Register for this type of hose coupling. The category is
designated “COUPLINGS, QUICK CONNECT, PERMANENT.” Under
this heading is a full-page advertisement for “Huron Quick
Connectors.” Under the “Quick Disconnect Coupling” heading
is an ad for Production Control Units, Inc. couplings
entitled “Quick connect couplings for all fluids.”
Opposition No. 99,974
5
A large number of the advertisements under both the
“Quick Connect” and Quick Disconnect” hose coupling headings
refer to “quick connective” couplings or to “quick
connected.” One advises customers to “Get Quick Connected
with the best. World leaders in quick coupling technology.”
A Notice of Reliance was filed by applicant on April
22, 1997. It covered sixteen third-party United States
trademark registrations for marks which are combinations of
the words “QUICK,” or variations of its phonetic equivalent,
and “CONNECT” or “CONNECTIONS.” One of these registrations1
specifies the goods as “couplings or hose adaptors for use
on heat exchangers adapted to cool torque converter fluid,
engine oil, power steering fluid and other fluid asociated
with hydraulic drives of land vehicles,” in Class 12. The
other registrations list goods or services which appear to
be unrelated to quick connect hose couplings.
An oral hearing before the Board was not requested, but
both parties filed briefs presenting their arguments. Based
on consideration of the briefs and the record before us in
this opposition proceeding, we hold that although some of
the evidence opposer attempted to make of record cannot be
considered, opposer has nonetheless established that the
term applicant seeks to register is unregistrable for the

1 Reg. No. 1,195,976, issued to Hayden, Inc. on May 18, 1982.
Opposition No. 99,974
6
goods specified in the application because it is a generic
term for these kinds of hose couplings.
In its brief, applicant objects to some of the evidence
opposer listed in its notices of reliance.
The first objection is that the copies of the patents
should have been introduced under Rule 2.122(e) of the
Trademark Rules of Practice, rather than Rule 2.122(d),
which opposer cited in the Notice of Reliance. Applicant
is, of course, correct in noting that the rule cited by
opposer applies to trademark registrations, rather than to
patents, and that the appropriate rule under which patents
may be made of record is Rule 2.122(e). The mistaken
reference to the wrong rule is not fatal to the notice of
reliance, however. This evidence is admissible under
paragraph (e) of the cited rule. We have considered this
evidence as if it had been introduced with reference to the
proper paragraph.
The second objection applicant raises in its brief is
to the materials submitted with the second notice of
reliance. Applicant argues that exhibits C, F, G and H are
undated, whereas paragraph (e) of Rule 2.122 requires that
both the source and the date of the publication be provided.
Applicant argues that these exhibits cannot be authenticated
without the dates of their publication, and that therefore
they are inadmissible. Applicant goes on to challenge the
Opposition No. 99,974
7
admissibility of Exhibits A, B, D, F and H on the ground
that catalogs, price listings and other printed materials
may not be admitted by notice of reliance, but rather must
be made of record in connection with testimony or in some
other way consistent with the rules.
Applicant’s objections are well taken. Not only are
some of these items undated, which falls short of the
requirement of the rule, but none of them is the type of
publication which may be introduced by means of a notice of
reliance. These are not “printed publications, such as
books or periodicals, available to the general public in
libraries or of general circulation among members of the
public or that segment of the public which is relevant under
the issue in [this] proceeding,” as Rule 2.122(e) requires.
As applicant points out, they are the kinds of documentary
exhibits which must be introduced in connection with
testimony in order to establish their authenticity. Andrea
Radio Corporation v. Premium Import Co., Inc., 191 USPQ
232(TTAB 1976). Accordingly, we have not considered
opposer’s Exhibits A through H.
Exhibit I, however, the copies from the Thomas
Register, are not the subject of applicant’s objection, and
this exhibit is properly of record in any event because it
is the type of evidence described in the rule as appropriate
for introduction by notice of reliance.
Opposition No. 99,974
8
The evidence of record clearly establishes that the
term sought to be registered would be understood by the
relevant purchasing public to refer to the category or class
of hose coupling known and referred to as “quick connect.”
Determining whether a term is generic, and hence
unregistrable under any circumstances, requires two
inquiries. First, the genus of the goods in question must
be determined. Second, we must decide if the term sought to
be registered is understood by the relevant purchasing
public as primarily referring to that genus of goods. H.
Marvin Ginn Corp. v. International Assn. Of Fore Chiefs, 228
USPQ 528(Fed. Cir. 1986). The term sought to be registered
in the case at hand, “QUICK CONNECT,” when used in
connection with applicant’s couplings for hoses, is generic
because it would be perceived as being a nonproprietary name
of a genus or category into which the goods fall, i.e.,
“quick connect” hose couplings.
Although “QUICK CONNECT” is not a nominative term,
i.e., the common or apt name for the products themselves, as
“quick connect couplings” would be, the term sought to be
registered is a generic adjective, and such terms have been
denied registration by the Office just as if they were
generic nouns. See In re Pennzoil Products Co., 20 USPQ2d
1753(TTAB 1991); In re Reckitt & Colman, North America Inc.,
18 USPQ2d 1389(TTAB 1991); A. J. Canfield Co. v. Honickman,
Opposition No. 99,974
9
et al., 1 USPQ2d 1364(3rd Cir. 1986); In re Northern
Aluminum Products, Inc., 227 USPQ 961(Fed. Cir. 1985); In re
Sun Oil Company, 165 USPQ 718(CCPA 1970); and In re Helena
Rubinstein, Inc., 161 USPQ 606(CCPA 1970).
Applicant’s contention that the third-party
registrations it made of record mandate registration of
applicant’s mark is not well taken, nor is the argument that
the opposition cannot be sustained without testimony from at
least one witness stating that usage in the marketplace has
reduced “QUICK CONNECT” to a generic term.
As to the first point, the third-party registrations do
not defeat opposer’s claim that the term is recognized as
the generic name for a category or type of hose coupling.
Of the sixteen registrations, all but one are for goods and
services totally unrelated to couplings for hoses. This
list includes: thermal time delay relays; an accessory for a
camera; computer programs; electrical contacts and printed
circuit boards; furniture; telecommunications services;
banking services; a clutch brake for land vehicles; heart
rate monitor electrodes; computer dating services and travel
agency services. That the term in question (or variations
on it) is distinctive for these products and therefore has
been registered for them has no bearing on the issue of
whether it is generic for the kind of hose couplings
specified in the application.
Opposition No. 99,974
10
The closest the third-party registrations get to
applicant’s goods is the registration of “QUICK CONNECT” for
“couplings or hose adaptors for use on heat exchangers
adapted to cool torque converter fluid, engine oil, power
steering fluid and other fluid associated with hydraulic
drives of land vehicles.”2 That registration is on the
Supplemental Register, which is an admission by that
registrant that the term is merely descriptive as applied to
those goods. In re Consolidated Foods Corp., 200
USPQ477(TTAB 1978). We are not privy, however, to the
record upon which the Examining Attorney in that case based
the conclusion that the term was only descriptive, and not
generic. In any event, the Board is not bound by previous
decisions of Examining Attorneys in applications which are
not before us, and we would not be required to adopt
whatever reasoning led to registration in that case,
especially if it appeared to be erroneous.
Applicant’s argument that opposer’s proof is somehow
deficient because it does not include “direct testimony of
consumers, consumer surveys, dictionary listings, as well as
newspapers and other publications” is not well taken. There
is no authority cited for this assertion. The admissible
evidence opposer properly made of record, including the
patent excerpts and the copies from the Thomas Register,

2 Reg. No. 1,195,976, issued to Hayden, Inc. on My 18, 1982;
Opposition No. 99,974
11
clearly establish the genericness of “QUICK CONNECT” as
applied to couplings for watering hose. Surveys or direct
testimony are simply not required.
Accordingly, the opposition is sustained and
registration to applicant is refused.
R. F. Cissel
E. W. Hanak
P. T. Hairston
Administrative Trademark Judges
Trademark Trial & Appeal Board

affidavit under Section 8 received.