Delta Faucet Co.

Trademark Trial and Appeal Board

May 10, 2019

87001991 (T.T.A.B. May. 10, 2019)

This Opinion is Not a
Precedent of the TTAB

Mailed: May 10, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Delta Faucet Co.
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Serial No. 87001991
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Edgar A. Zarins of Masco Corporation,1
for Delta Faucet Company.
Nelson B. Snyder III, Trademark Examining Attorney, Law Office 107,
J. Leslie Bishop, Managing Attorney.
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Before Bergsman, Lykos and Lynch,
Administrative Trademark Judges.

Opinion by Lykos, Administrative Trademark Judge:
Delta Faucet Company (“Applicant”) seeks to register the mark FOUNDRY in
standard characters on the Principal Register for “plumbing products, namely,
faucets” in International Class 11.2

1 The attorney of record is in-house counsel at Masco Corporation, the parent company of
both Delta Faucet Company and Masco Corporation of Indiana. See Ex Parte Appeal Serial
No. 86519140, In re Delta Faucet Co. (Aug. 17, 2017 TTAB) at n.2.
2 Application Serial No. 87001991, filed April 15, 2016 under Section 1(b) of the Trademark
Act, 15 U.S.C. § 1051(b), claiming a bona fide intent to use the mark in commerce.
Serial No. 87001991
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The Trademark Examining Attorney has refused registration under Section
2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that the mark is
deceptively misdescriptive of Applicant’s identified goods, or alternatively, that the
mark is merely descriptive. The appeal is fully briefed.
Section 2(e)(1) of the Trademark Act prohibits registration on the Principal
Register of designations that are deceptively misdescriptive of the goods or services
to which they are applied in the absence of a showing of acquired distinctiveness
under Section 2(f) of the Trademark Act, 15 U.S.C. § 1052(f). A mark is considered
deceptively misdescriptive if (i) the mark misdescribes a quality, feature, function, or
characteristic of the goods or services with which it is used; and (ii) consumers would
be likely to believe the misrepresentation. In re White Jasmine LLC, 106 USPQ2d
1385, 1394 (TTAB 2013) (citing In re Quady Winery, Inc., 221 USPQ 1213, 1214
(TTAB 1984)).
As the starting point for our analysis, for a term to misdescribe goods, the term
must be merely descriptive of a significant aspect of the goods which the identified
goods could plausibly possess, but in fact do not. In re Hinton, 116 USPQ2d 1051,
1052 (TTAB 2015); In re Schniberg, 79 USPQ2d 1309, 1312 (TTAB 2006); In re
Phillips-Van Heusen Corp., 63 USPQ2d 1047, 1051 (TTAB 2002). “A term is merely
descriptive if it immediately conveys knowledge of a quality, feature, function, or
characteristic of the goods or services with which it is used.” In re Chamber of
Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012)
(quoting In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed.
Serial No. 87001991
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Cir. 2007)). See also In re TriVita, Inc., 783 F.3d 872, 114 USPQ2d 1574, 1575 (Fed.
Cir. 2015). This determination must be made in relation to the goods for which
registration is sought, not in the abstract. In re Chamber of Commerce, 102 USPQ2d
at 1219; In re Bayer, 82 USPQ2d at 1831. This requires consideration of the context
in which the mark is used or intended to be used in connection with those goods, and
the possible significance that the mark would have to the average purchaser of the
goods in the marketplace. In re Chamber of Commerce, 102 USPQ2d at 1219; In re
Bayer, 82 USPQ2d at 1831; In re Omaha Nat’l Corp., 819 F.2d 1117, 2 USPQ2d 1859
(Fed. Cir. 1987).
To show that “foundry” merely describes a significant aspect of Applicant’s goods
which they could plausibly possess, the Examining Attorney has submitted U.S.
English dictionary entries from multiple online sources, including THE AMERICAN
HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (www.ahdictionary.com),
MERRIAM-WEBSTER DICTIONARY (www.merriam-webster.com), MACMILLAN
DICTIONARY (www.macmillandictionary.com), COLLINS (www.collinsdictionary.com),
and OXFORD DICTIONARIES (http://en.oxforddictionaries.com).3 By way of illustration,
we highlight the entries from COLLINS defining “foundry” as “1. the act, process or
work of melting and molding metals; casting 2. metal castings 3. a place where metal
is cast,”4 and THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE as “1.
An establishment where metal objects are made by melting metal and pouring into

3 See February 18, 2018 Office Action, pp. 2-16 and July 6, 2018 Office Action, pp. 2-4.
4 February 28, 2018 Office Action, p. 12.
Serial No. 87001991
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molds. 2.a. The skill or operation of founding 2.b. The castings made by founding.”5
In addition, the Examining Attorney made of record a third-party registration
showing the term FOUNDRY disclaimed for a mark registered on the Principal
Register for faucets.6 Numerous other third-party registrations also show FOUNDRY
disclaimed for other metal goods such as pipes, catch basin grates, and manhole
covers.7 Also, as discussed below, evidence of third-party use of FOUNDRY in
connection with plumbing goods further corroborates its descriptive nature in this
context. Based on this evidence, “foundry” merely describes a significant
characteristic or feature of the identified goods, namely that they are manufactured
from metal castings and/or are produced in a manufacturing facility of this type.
To ascertain whether FOUNDRY misdescribes Applicant’s goods, during
prosecution, the Examining Attorney issued the following information request under
Trademark Rule 2.61(b), 37 C.F.R. § 2.61(b):
1) Are any of the identified goods produced in a foundry?
2) Will any of the identified goods be produced in a foundry?
3) Are any parts of the identified goods produced in a
foundry?
4) Will any parts of the identified goods be produced in a
foundry?8
Applicant responded:

5 Id. at 6.
6 See Registration No. 3441504 for the mark REGIONS FOUNDRY for goods including
“faucets” in International Class 11 submitted with July 6, 2018 Office Action, pp. 9-10.
7 Id. at 5-22; January 26, 2017 Office Action, pp. 7-11, 16-18, 25-30.
8 January 26, 2017 Office Action.
Serial No. 87001991
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The most common definition of a foundry is a factory that
produces metal castings. Metals such as aluminum and
cast iron are cast into shapes by melting them into a liquid,
pouring the liquid metal in a mold, and removing the mold
material after the metal has solidified. Applicant’s goods
are not manufactured in a foundry nor are they cast metal.
Applicant’s goods are manufactured with stamped
components. Therefore, the answer to all of the questions
posed by the Examining Attorney is “no”.9
The aforementioned evidence unequivocally establishes that Applicant’s proposed
mark misdescribes the identified goods.
Having met the first prong of the test, we turn to the question of whether
consumers would be likely to believe the misrepresentation. To establish the
plausibility element, the Examining Attorney points to evidence showing that
competitors in the field promote to consumers that they do in fact manufacture
plumbing products such as faucets from metal castings and in production facilities
known as foundries. Note the following examples:
Chicago Faucets has been America’s leading manufacturer
of commercial faucets for over 110 years … Our foundry,
manufacturing, assembly, and distribution facilities are
located within a 350 mile radius of our corporate office.10
This 145-year-old manufacturer of, among other things,
toilets, bathtubs and faucets, is bringing your entire
bathroom online. Underneath the foundry where the
family-owned Kohler pours iron for its sinks and tubs … is
Kohler's brand new Smart Home Experience Lab.11
Charlotte Pipe and Foundry Company … has been a
preferred supplier to wholesalers for over a century. Plus,

9 July 18, 2017 Response to Office Action.
10 Excerpt from www.chicagofaucets.com submitted with July 6, 2016 Office Action, pp. 23-
24.
11 Excerpt from www.cnet.com submitted with February 28, 2018 Office Action, p. 20.
Serial No. 87001991
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as the only manufacturer of cast iron and plastic plumbing
systems, we are in a unique position to assist our customers
when deciding whether cast iron or plastic products should
be used for an application.12
This evidence shows that consumers are accustomed to encountering in the
marketplace plumbing products such as faucets manufactured from metal products
and produced at a foundry. It is therefore likely that consumers will be deceived by
Applicant’s misrepresentation.
Applicant counters that consumers would perceive its proposed mark FOUNDRY
as “simply another fanciful descriptor of a faucet collection” and that “[a]t most, they
may associate an industrial style to the collection.”13 Given the nature of the goods,
and the evidence that competitors in the industry use FOUNDRY to describe to
consumers their production facility and process, we are skeptical that prospective
consumers would attribute any of these “fanciful” meanings to Applicant’s mark.
In sum, upon consideration of the entirety of the record and arguments, including
those not specifically discussed in our opinion, we find Applicant’s proposed standard
character mark FOUNDRY deceptively misdescriptive of “plumbing products,
namely, faucets” in International Class 11 under Section 2(e)(1) and therefore
ineligible for registration on the Principal Register in the absence of a showing of
acquired distinctiveness. In view thereof, we need not reach the Examining
Attorney’s refusal in the alternative that Applicant’s mark is merely descriptive.

12 Excerpt from www.charlottepipe.com submitted with February 28, 2018 Office Action July
6, 2016 Office Action, pp. 17-18.
13 Applicant’s Brief at 4 TTABVUE 2.
Serial No. 87001991
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Decision: The refusal to register is affirmed.