Delta Faucet Company

Trademark Trial and Appeal Board

Sep 21, 2018

No. 87035799 (T.T.A.B. Sep. 21, 2018)

This Opinion is Not a
Precedent of the TTAB

Mailed: September 21, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Delta Faucet Company
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Serial No. 87035799
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Edgar A. Zarins of Masco Corporation for Delta Faucet Company.
Nelson B. Snyder III, Trademark Examining Attorney, Law Office 107,
J. Leslie Bishop, Managing Attorney.
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Before Shaw, Adlin, and Coggins
Administrative Trademark Judges.

Opinion by Shaw, Administrative Trademark Judge:
Delta Faucet Company (“Applicant”) seeks registration on the Principal Register
of the mark SMARTTECH (in standard characters) for “Technical support services,
namely, technical advice related to the installation, maintenance and repair of
plumbing products,” in International Class 37.1
The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that

1 Application Serial No. 87035799 was filed on May 13, 2016 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), alleging a bona fide intent to use the mark in commerce.
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the mark is merely descriptive of the identified services. When the refusal was made
final, Applicant appealed. We affirm the refusal to register.
I. Mere Descriptiveness under Section 2(e)(1)
“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. Cir. 2007)); In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009-10 (Fed.
Cir. 1987). Whether a particular term is merely descriptive is determined in relation
to the goods or services for which registration is sought and the context in which the
term is used, not in the abstract or on the basis of guesswork. In re Abcor Dev. Corp.,
588 F.2d 811, 200 USPQ 215, 218 (CCPA 1978).
II. Arguments and Evidence
The Examining Attorney argues that:
[T]he applied-for mark . . . is short for “smart technology”,
which is defined as “equipment developed from the
application of scientific knowledge” that “use[s] computer
technology to make [it] effective”. . . . As such, the mark
wording identifies a characteristic or feature of the
identified services, namely, that they involve “advice
related to . . . plumbing products” containing “smart
technology.2 (Internal citations omitted).
In support of this position, the Examining Attorney submitted evidence pertaining to
the meaning of the mark’s constituent, compound terms, as well as third-parties’ use

2 Examining Attorney’s Br., p. 5, 8 TTABVUE 6.
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of the terms. The evidence includes: (1) dictionary definitions of “smart” and “tech” or
“technology;” (2) third-party websites purporting to show that the term “smart
technology” or “smart tech” is used in the plumbing industry to refer to plumbing
products; and (3) third-party registrations comprising the term “tech” for technical
support services in a variety of fields, wherein the term “tech” is disclaimed or
otherwise treated as merely descriptive.
Dictionaries define “smart” as “smart machines [which] use computer technology
to make them effective.”3 “Tech” is defined as an informal form of “technology,” which
is in turn defined as “[t]he application of scientific knowledge for practical purposes,
especially in industry.”4
Web sites establish that the terms “smart technology” and “smart tech” are
commonly used to describe plumbing fixtures. The following examples are
representative (emphasis added):
• “Smart technology is taking over the North American home . . . . [W]ith
smart fixture plumbing available in your toilet and bathtub. The next big
addition to your smart bathroom? Smart faucets . . . .”
(www.benjaminfranklinplumbing.com);5
• “Smart tech innovations is [sic] now fully implemented within the
heating/plumbing industry. A recent poll of plumbers reveals over 90% have
used smart technology in their work.” (http://n10gas.com);6
• “You will be surprised how smart technology pairs with your favorite . . .
faucets. . . .” (http://freshome.com);7

3 Oxford Dictionaries, oxfordictionaries.com, Office Action of July 8, 2016, pp. 8-10.
4 Id. at 2-6.
5 Office Action of July 8, 2016, p. 15.
6 Id. at 33.
7 Id. at 21.
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• “3 new way to stop plumbing problems with smart technology” (www.proud-
greenhome.com);8
• “Smart Technology in Professional Plumbing in Mesa, AZ . . . Plumbers are
now installing systems into modern homes that include digital technology.”
(www.4fathershomeservices.com);9
• “Smart technology and green living have both been eagerly embraced . . .
more and more, plumbers are being asked to install more efficient and
advanced systems. Speaking of smart technology – some faucets and
appliances now come with attached LED lighting and screens that allow you
to monitor temperature control.” (www.tritan-plumbing.com);10
• Upgrading your home with smart technology can save you money, time, and
help turn your home into a safer environment. . . . With a smart shower head
. . . you’ll enjoy a great shower with plenty of water pressure while using less
water . . . .” (http://connorplumbing.com);11 and
• “New in Smart Technology: Faucets” (www.familyplumber.net).12
In addition, the Examining Attorney made of record a number of third-party
registrations for marks including the term TECH for plumbing services or technical
support services in a variety of fields. Third-party registrations may be used as
evidence, albeit not conclusive, of whether the term is descriptive. See Sweats
Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 4 USPQ2d 1793, 1797 n.1 (Fed.
Cir. 1987). All of these registrations disclaim TECH or include a claim of acquired
distinctiveness of TECH pursuant to Section 2(f) of the Trademark Act, 15 U.S.C.
§1052(f):13
• Registration No. 2580872 for the mark DRAINTECH, (registered under
Section 2(f)), for “plumbing, namely, sewer and drain cleaning, water
jetting, pipe locating, pipe inspection and septic tank pumping;”

8 Id. at 12.
9 Id. at 31.
10 Id. at 6.
11 Id. at 12-13.
12 Id. at 17.
13 Id. at 21-57.
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• Registration No. 3844120 for the mark TECH SHAMAN, with a disclaimer
of TECH, for, inter alia, “Technical support services, namely,
troubleshooting in the nature of the repair of computer hardware;”
• Registration No. 3960433 for the mark JIFFY TECH, with a disclaimer of
TECH, for, inter alia, “Technical support services, namely, troubleshooting
in the nature of the repair of computer hardware;”
• Registration No. 3991631 for the mark TOMMY TECH SERVICE
AMERICA and design, with a disclaimer of TECH, for, inter alia, plumbing
services;
• Registration No. 4126378 for the mark TECH 4 TECHS, with a disclaimer
of TECH, for, inter alia, “technical support services, namely, providing
technical advice in the field of vehicle repair and maintenance;”
• Registration No. 4089063 for the mark LOCK AND TECH and design,
with a disclaimer of TECH, for, inter alia, “Plumbing contractor services
[and] Plumbing services;”
• Registration No. 4332528 for the mark DELL TECH CONCIERGE, with
a disclaimer of TECH, for, inter alia, “technical support services, namely,
troubleshooting in the nature of diagnosing computer hardware and
software problems;” and
• Registration No. 4881857 for the mark TECH COACH, with a disclaimer
of TECH, for, inter alia, “Technical support services, namely, consulting in
the field of maintenance and repair of wireless telephone connections.”
Taken as a whole, we find that the Examining Attorney’s evidence establishes that
the term SMARTTECH merely describes the type of “technical advice” Applicant
provides “related to the installation, maintenance and repair of plumbing products.”
In fact, SMART and TECH are now commonly used in connection with certain types
of plumbing products and services, and immediately convey the use of computer
hardware or software in connection with plumbing.
Applicant argues that “[t]he mark SMARTTECH does not provide an immediate
indication or description of the associated services, namely, consumer assistance with
plumbing products. The mark has no immediate association with plumbing
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products.”14 This argument is unpersuasive. Consumers who know that Applicant
provides plumbing-related technical support services will immediately understand
SMARTTECH to convey information about them, namely, that Applicant’s “technical
advice” concerns “smart” plumbing products which include “tech.” In re Abcor Dev.
Corp., 200 USPQ at 218.
Applicant’s argument that “the mark itself is an arbitrary compound term with no
direct definition”15 is equally unpersuasive. The terms SMART and TECH have
recognized descriptive meanings, as the numerous uses cited above establish. When
two or more merely descriptive terms are combined, the determination of whether
the combined mark also has a merely descriptive significance turns on whether the
combination of terms evokes a non-descriptive commercial impression. If each
component retains its merely descriptive significance in relation to the services, the
combination results in a composite that is itself merely descriptive. See In re
Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1372 (Fed. Cir. 2004)
(quoting Estate of P.D. Beckwith, Inc. v. Comm’r., 252 U.S. 538, 543 (1920)); In re
Putman Publ’g. Co., 39 USPQ2d 2021 (TTAB 1996) (FOOD & BEVERAGE ONLINE
merely descriptive of news and information services in the food processing industry).
Here, the evidence of record amply shows that SMART and TECH have commonly
understood descriptive meanings, and each component of Applicant’s SMARTTECH
mark retains its descriptive significance. Applicant’s “compounding” of the terms

14 Applicant’s Br., p. 1, 6 TTABVUE 2.
15 Id.
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“smart” and “tech” into SMARTTECH without a space is “immaterial to the issue
before us.” In re Greenliant Sys. Ltd., 97 USPQ2d 1078, 1083 (TTAB 2010); In re 3Com
Corp., 56 USPQ2d 1060, 1062 (TTAB 2000). See also, In re Gould Paper Corp., 834
F.2d 1017, 5 USPQ2d 1110 (Fed. Cir. 1987). See also In re Cryomedical Sciences, Inc.,
32 USPQ2d 1377 (TTAB 1994) (SMARTPROBE merely descriptive of disposable
cryosurgical probes); In re Tower Tech Inc., 64 USPQ2d 1314, 1317-18 (TTAB 2002)
(SMARTTOWER merely descriptive of commercial and industrial cooling towers); In
re Finisar Corp., 78 USPQ2d 1618 (TTAB 2006) (SMARTSFP merely descriptive of
optical transceivers); In re Cannon Safe, Inc., 116 USPQ2d 1348 (TTAB 2015)
(SMART SERIES merely descriptive of metal safes).
III. Conclusion
We conclude that SMARTTECH merely describes a feature or characteristic of
Applicant’s technical support services.
Decision: The refusal to register Applicant’s mark SMARTTECH under Section
2(e)(1) of the Trademark Act is affirmed.