ITT Industries, Inc.

Trademark Trial and Appeal Board

Jul 24, 1998

No. 74728226 (T.T.A.B. Jul. 24, 1998)

Paper No. 13
Hanak/mt
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re ITT Industries, Inc.
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Serial No. 74/728,226
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John R. Garber of Cooper & Dunham LLP for ITT Industries,
Inc.
Cynthia C. Henderson, Trademark Examining
Attorney, Law Office 104 (Sidney Moskowitz,
Managing Attorney).
_______
Before Cissel, Hanak and Hohein, Administrative Trademark
Judges.
Opinion by Hanak, Administrative Trademark Judge:
ITT Industries, Inc. (applicant) seeks registration of
the mark C-300 in typed capital letters for “heat
exchangers.” The application was filed on September 11,
1995 with a claimed first use date of July, 1961. In its
application, applicant stated that its “mark has become
distinctive of applicant’s goods by virtue of its exclusive
and continuous use thereof in commerce for more than five
Ser No. 74/728,226
2
years prior to the date of the filing of this application.”
The Examining Attorney refused registration pursuant to
Sections 1, 2 and 45 of the Lanham Trademark Act on the
basis that applicant’s mark functions solely as a model
designation, and not as a source identifier. The Examining
Attorney dismissed applicant’s Section 2(f) evidence of
acquired distinctiveness as being insufficient.
When the refusal was made final, applicant appealed to
this Board. Applicant and the Examining Attorney filed
briefs. Applicant did not request a hearing.
In support of its claim of acquired distinctiveness,
applicant submitted the affidavit of its Assistant
Secretary, Robert Seitter. Mr. Seitter stated that
applicant had made continuous and exclusive use of the mark
C-300 in connection with heat exchangers since 1961.
Furthermore, Mr. Seitter stated that “the relevant
purchasing public recognizes C-300 as a trademark which
identifies the goods [heat exchangers] of the applicant.”
Attached as an exhibit to Mr. Seitter’s affidavit was a page
from a brochure describing various types of heat exchangers
marketed by applicant. At the top of that page, there
appears in very prominent lettering the designation C-300.
This designation also appears on numerous occasions in the
text found on that page.
Ser No. 74/728,226
3
In addition, applicant notes that on March 7, 1989
applicant obtained Registration No. 1,528,109 for the
identical mark (C-300) for the identical goods (heat
exchangers) based upon the identical specimens of use.
Continuing, applicant notes that it inadvertently failed to
file a Section 8 affidavit, thereby causing this prior
registration to lapse in 1995. Applicant states that its
current application merely represents “the refiling of the
identical application that matured into Registration No.
1,528,108.” Applicant states that there have been no
changed circumstances between 1988 when it filed its first
application and 1995 when it filed this application which in
any way would cause the designation C-300 to lose any of its
acquired distinctiveness as a source indicator of goods
originating with applicant. Indeed, applicant contends that
with an additional ten years of continuous and exclusive use
of C-300 (i.e. 1988 to 1998), such designation has acquired
even more distinctiveness as indicating heat exchangers
originating from applicant.
In response, the Examining Attorney has made of record
no evidence indicating that the designation C-300 serves
solely as a model number. Rather, it is the Examining
Attorney’s contention that “applicant’s evidence of acquired
distinctiveness is insufficient to show that the model
Ser No. 74/728,226
4
number [C-300] is a source indicator.” (Examining Attorney’s
brief pages 6-7).
If letter and number combinations are perceived solely
as indicating model, style or grade, they are not
registerable. However, if letter and number combinations
serve “a dual purpose” of indicating both (1) model, style
or grade, and (2) source of goods, they are registerable as
trademarks. McCarthy on Trademarks and Unfair Competition
Section 7:16 at page 7-20 (4th ed. 1998).
We find that applicant’s showing of acquired
distinctiveness pursuant to Section 2(f) is sufficient to
establish, at a minimum, that applicant’s designation C-300
serves such a dual purpose.
Decision: The refusal to register is reversed.
R. F. Cissel
E. W. Hanak
G. D. Hohein
Administrative Trademark Judges
Trademark Trial and Appeal Board