Modern Builders Supply, Inc.

Trademark Trial and Appeal Board

Mar 17, 2004

No. 78058068 (T.T.A.B. Mar. 17, 2004)

Mailed: 3/17/04
Paper No. 21
ejs
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Modern Builders Supply, Inc.
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Serial No. 78058068
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Oliver E. Todd, Jr. of MacMillan, Sobanski & Todd, LLC for
Modern Builders Supply, Inc.
Raul Cordova, Trademark Examining Attorney, Law Office 114
(Margaret Le, Managing Attorney).
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Before Seeherman, Hairston and Drost, Administrative
Trademark Judges.
Opinion by Seeherman, Administrative Trademark Judge:
Modern Builders Supply, Inc. has appealed from the
final refusal of the Trademark Examining Attorney to
register MASTERTECH as a trademark for "non-metallic
windows and doors."1 Registration has been refused pursuant
1 Application Serial No. 78058068, filed April 12, 2001. The
application was originally based on Section 1(b) of the Act
(intent to use). After a notice of allowance issued, applicant
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser No. 78058068
2
on the basis that applicant failed to submit a specimen
showing use of the applied-for mark for the identified
goods.
Applicant and the Examining Attorney have filed appeal
briefs. Applicant did not request an oral hearing.
Trademark Rule 2.88(b)(2) provides that the Statement
of Use must include "one specimen of the mark as actually
used in commerce." It refers to Trademark Rule 2.56 for
the requirements for specimens. Trademark Rule 2.56(a)
provides, in part, that a statement of use under Rule 2.88
must include one specimen showing the mark as used on or in
connection with the goods. Rule 2.56(b)(1) further
provides, in part, that a trademark specimen is a label,
tag, or container for the goods, or a display associated
with the goods."
In order to determine whether applicant's specimen
shows the mark as used on the goods, we must examine the
specimen itself. Applicant has submitted what it describes
as a label that is "affixed to the packaging of all windows
and doors manufactured by Polaris Technologies." Response
dated October 8, 2002. Applicant has further explained
filed its Statement of Use on May 22, 2002. The refusal which is
the subject of this appeal stems from the examination of the
Statement of Use.
Ser No. 78058068
3
that Polaris Technologies is applicant's window and door
manufacturing division. The "label" is shown below, in
reduced form:
As can be seen on the reproduced specimen, the
applied-for mark MASTERTECH is shown on the label in a box
headed, "Look for these other fine Polaris® products...."
There follows a list of various trademarks, including
ENERGY WALL, ENERGYTECH, ENERGYWELD, MASTERCRAFT and
EVERVIEW. Included in this list is MASTERTECH.
It is clear to us, as it would be clear to anyone
viewing this specimen, that the mark for the product on
which the label appears is POLARIS, and that MASTERTECH,
while a mark used by applicant's Polaris division, is not
Ser No. 78058068
4
the mark under which the goods to which the label is
applied are sold. On the contrary, the label states
unequivocally that MASTERTECH is a trademark for an "other"
Polaris product. Accordingly, the label which applicant
has submitted as its specimen does not show use of the
applied-for mark for the goods and, at most, as the
Examining Attorney contends, would constitute only
advertising for applicant's MASTERTECH products.
Decision: The refusal of registration is affirmed.