Spraying Systems Co.

Trademark Trial and Appeal Board

Jul 10, 1997

EX (T.T.A.B. Jul. 10, 1997)

THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB JULY 10, 1997
Paper No. 13
EJS
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Spraying Systems Company
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Serial No. 74/515,552
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Dennis R. Schlemmer for Spraying Systems Company
Won T. Oh, Trademark Examining Attorney, Law Office 104
(Sidney Moskowitz, Managing Attorney)
_______
Before Sams, Simms and Seeherman, Administrative Trademark
Judges.
Opinion by Seeherman, Administrative Trademark Judge:
Spraying Systems Company has applied to register TURBO
TEEJET as a trademark for "machine parts, namely spray
nozzles for power operated agricultural sprayers."1 The
Examining Attorney made a final requirement that applicant
disclaim exclusive rights to the word TURBO, and applicant
has appealed. The case has been fully briefed; an oral
hearing was not requested.

1 Application Serial No. 74/515,552, filed April 21, 1994,
based on an asserted bona fide intention to use the mark in
commerce.
Ser No. 74/515,552
2
Section 6(a) of the Trademark Act, 15 U.S.C. 1056(a),
provides that the Commissioner may require an applicant to
disclaim an unregistrable component of a mark otherwise
registrable. Section 2(e)(1) of the Act, 15 U.S.C.
1052(e)(1), prohibits the registration of a mark which is
merely descriptive of the applicant's goods.
The Examining Attorney asserts that TURBO is merely
descriptive of applicant's goods. In support of this
position, he has made of record excerpts from a number of
articles taken from the NEXIS database in which the words
"spray," "nozzle" and "turbo" appear. We have carefully
reviewed these articles and find none that refers to spray
nozzles for agricultural use. On the contrary, they refer
to high-powered pressure washers, cars, jet engines, the
setting of cement, and so on. In his brief, the Examining
Attorney takes the position that the articles "show that
TURBO does have some significance to spray nozzles in
general," and that the Examining Attorney need only show
that TURBO is descriptive of the genre of applicant's goods,
namely spray nozzles, rather than applicant's particular
goods, spray nozzles for agricultural sprayers. Brief,
p. 3. Thus, it is the Examining Attorney's position that,
regardless of the fields of use, the term TURBO is
descriptive if applied to any type of spray nozzle.
Ser No. 74/515,552
3
This is a misreading of the law. It is well-
established that the question of descriptiveness is to be
determined in relation to the goods on which, or the
services in connection with which, a mark is used. In re
Abcor Development Corp., 200 USPQ 215 (CCPA 1978). The
Examining Attorney has presented no evidence from which we
can determine that spray nozzles for agricultural sprayers
are related to spray nozzles for pressure washers and the
other items referred to in the NEXIS excerpts, such that we
can conclude that TURBO would be descriptive of the
identified spray nozzles for power operated agricultural
sprayers.
The Examining Attorney has also asked the Board to take
judicial notice of the following dictionary definition for
"turbine" ("turbo-" being defined as a combining form
representing turbine in a compound word):
any of various machines having a rotor,
usually with vanes or blades, driven by
the pressure, momentum, or reactive
thrust of a moving fluid, as steam,
water, hot gases, or air, either
occurring in the form of free jets or as
a fluid passing through and entirely
filling a housing around the rotor.
The Examining Attorney contends that applicant's spray
nozzles are machine parts that apparently use pressure to
facilitate the effectiveness of the sprayer or to increase
the surface area sprayed, and therefore that TURBO is
descriptive for applicant's power-operated spray nozzles
Ser No. 74/515,552
4
within the broad definition as set forth in the dictionary.
Brief, p. 3.
Applicant, on the other hand, has stated affirmatively
that its product has nothing to do with a turbine engine,
and that TURBO has no significance in the relevant trade or
industry as applied to its goods.2 Nor do we read the
definition of "turbine" as broadly as the Examining Attorney
does. A turbine, according to the dictionary definition, is
not any machine driven by pressure, but a machine driven by
a rotor. There is no evidence whatsoever to show that spray
nozzles for power sprayers for agricultural use are driven
by rotors. Nor can we find any indication in applicant's
promotional literature for its TURBO TEEJET nozzles that
TURBO would have descriptive significance with respect to
any feature of applicant's goods.
While TURBO may be descriptive of certain types of
nozzles, there is no evidence of record which shows that
TURBO is descriptive of applicant's particular spray nozzles
for agricultural sprayers or for spray nozzles for
agricultural sprayers in general.
In view of the lack of evidence that TURBO is
descriptive of the goods identified in applicant's
application-- machine parts, namely spray nozzles for power
operated agricultural sprayers--we need not discuss the
Ser No. 74/515,552
5
additional arguments and evidence submitted by applicant in
support of its position that TURBO is not merely descriptive
of its goods.
Decision: The refusal of registration is reversed, and
the application will be forwarded to publication without a
disclaimer of TURBO.
J. D. Sams
R. L. Simms
E. J. Seeherman
Administrative Trademark Judges
Trademark Trial and Appeal Board

2 Applicant has pointed out that a registration for its
companion mark, TURBO FLOODJET, for the same goods issued in
1993 without a disclaimer of TURBO.