ModTruss Inc.

Trademark Trial and Appeal Board

Aug 15, 2017

No. 86664828 (T.T.A.B. Aug. 15, 2017)

This Opinion is Not a
Precedent of the TTAB

Mailed: August 15, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re ModTruss Inc.
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Serial No. 86664828
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James W. Kayden of McClure Qualey & Rodack LLP,
for ModTruss Inc.

Matthew J. McDowell, Trademark Examining Attorney,
Law Office 101, Ronald R. Sussman, Managing Attorney.
_____

Before Zervas, Wolfson and Shaw,
Administrative Trademark Judges.

Opinion by Wolfson, Administrative Trademark Judge:

ModTruss Inc. (“Applicant”) seeks registration on the Principal Register of the
mark MODTRUSS (in standard characters) for
Aluminum building components and steel building
components, namely, beams, pre-fabricated
architectural columns, trusses for building, structural
joint connectors, pipe adapters, splice plates, joist
hangers, stacker plates, hinges, hydraulic mounts,
sleeve blocks in the nature of metal blocks with
internal mounted wheels to create linear movement of
both horizontal and vertical directions for a truss
structure, z-arms in the nature of spacers, decorative
Serial No. 86664828

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wall, ceiling and floor panels, hand rails, frame rails,
stair stringers in the nature of inclined beams for
creating staircases and connecting staircases to
structures, stair treads
in International Class 6.1
The Trademark Examining Attorney refused registration on the ground that
the mark is merely descriptive of the identified goods under Section 2(e)(1) of the
Trademark Act, 15 U.S.C. § 1052(e)(1). After the Examining Attorney made the
refusal final, Applicant appealed, and Applicant and the Examining Attorney filed
appeal briefs. We affirm the refusal to register.
The Examining Attorney maintains that the proposed mark is merely
descriptive of Applicant’s building components, especially “trusses for building.”
Specifically, the Examining Attorney contends that the term “mod” is an
abbreviation for “modular;” that “truss” is the generic term for the goods; and that
prospective purchasers of Applicant’s “trusses for buildings” will readily
understand the goods to include trusses that are designed to be modular.
Applicant, on the other hand, argues that “mod” has a variety of meanings,
such as “modern” and “modified;” and that “the consumer does not know if the
term ModTruss refers to a modular truss, a modified truss, a modern truss, a
stylish truss, a moderated truss, a moderate truss, etc., etc.”2 Applicant further

1 Application Serial No. 86664828 was filed June 16, 2015 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), alleging first use and first use in commerce of January
2014.
2 Appeal Brief, 4 TTABVUE 5.
Serial No. 86664828

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argues that competitors have no need to use the term “modtruss” in describing
their products, and that the existence of several third-party registrations
comprising “mod” plus other wording is illustrative of the Office’s treatment of
“mod” as suggestive only, as none of the third-party registrations include a
disclaimer of the term “mod.”
As an initial matter, we note that Applicant attached two exhibits to its brief.
Trademark Rule 2.142(d) provides that the record in an application should be
complete prior to the filing of an appeal, and the Board will ordinarily not consider
additional evidence filed by applicant or the Examining Attorney after the appeal
is filed. In re Total Quality Group Inc., 51 USPQ2d 1474, 1476-7 (TTAB 1999).
Here, however, the Examining Attorney did not object to the exhibits and in fact
treated the exhibits as being of record.3 Accordingly, we have considered them:
Exhibit A, a page from Applicant’s website at http://www.modtruss.com/about-us/;
Exhibit B, copies of third-party registrations from the USPTO’s Trademark
Electronic Search System (TESS) database.4 See In re Total Quality Group, 51
USPQ2d at 1477 n.6 (examining attorney did not object to listing of third-party
registrations, rather he treated the registrations as if they were of record); In re
Dos Padres Inc., 49 USPQ2d 1860, 1861 n.2 (TTAB 1998) (examining attorney did
not object to and treated as of record listings from a commercial trademark search
report submitted by applicant during prosecution, so Board considered material);

3 Examining Attorney’s Brief, 6 TTABVUE 10, 11.
4 4 TTABVUE 12-34.
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Trademark Board Manual of Procedure (TBMP) §§ 1207.03 and 1208.02 (June
2017).
A term is merely descriptive of goods or services within the meaning of Section
2(e)(1) if it forthwith conveys an immediate idea of an ingredient, quality,
characteristic, feature, function, purpose or use of the goods or services. In re
Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed.
Cir. 2012). See also 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 (Fed. Cir.
1987). Whether a mark 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 or intended to be 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); In re Remacle,
66 USPQ2d 1222, 1224 (TTAB 2002). A term need not immediately convey an idea
of each and every specific feature of the goods or services in order to be considered
merely descriptive; it is enough if it describes one significant attribute, function
or property of them. See Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d
1370, 1371 (Fed. Cir. 2004) (“A mark may be merely descriptive even if it does not
describe the “full scope and extent” of the applicant's goods or services.”); In re
Gyulay, 3 USPQ2d at 1010; In re H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982); In
re MBAssociates, 180 USPQ 338 (TTAB 1973). The analysis requires consideration
of the possible significance that the mark would have to the average purchaser of
the identified goods or services in the relevant marketplace. In re Chamber of
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Commerce, 102 USPQ2d at 1219; Bayer, 82 USPQ2d at 1831; Abcor, 200 USPQ at
218. The analysis assumes that the consumer knows what the goods or services
are, and asks if such consumer will understand the mark to convey information
about them. DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F. 3d
1247, 1254, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012), quoting In re Tower Tech.
Inc., 64 USPQ2d 1314, 1316-17 (TTAB 2002).
When two merely descriptive terms are combined to form a new term, the
result is registrable only if the combination of components creates a unitary mark
with a nondescriptive meaning, or if the composite has a bizarre or incongruous
meaning as applied to the goods or services. If each component retains its merely
descriptive significance in relation to the goods or services, the combination
results in a composite that is itself merely descriptive. See, e.g., In re Omaha Nat’l
Corp., 819 F.2d 1117, 2 USPQ2d 1859 (Fed. Cir. 1987) (finding FIRSTIER merely
descriptive of applicant’s banking services); In re Tower Tech., 64 USPQ2d at 1318
(SMARTTOWER merely descriptive for a computer controlled cooling tower);
Continental Airlines v United Air Lines, 53 USPQ2d 1385 (TTAB 2000) [E-
TICKET merely descriptive as an abbreviated form of “electronic ticketing”]. See
also In re Colonial Stores Inc., 394 F.2d 549, 157 USPQ 382 (CCPA 1968); In re
Shutts, 217 USPQ 363 (TTAB 1983).
In determining the overall meaning for the mark MODTRUSS, although we
consider the issue with respect to the impression made by the mark as a whole,
we may preliminarily consider the meanings of the separable components of the
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mark. Thus, we note that the word “truss” is defined as a “framework of timber or
iron, or both, so constructed as to form a firm support for a superincumbent
weight, as that of a roof or bridge.”5 The word is generic for Applicant’s structural
building components. Applicant does not contend otherwise, and has identified its
goods as including “trusses for building.” On its “About Us” web page, Applicant
touts that it has “earned an industry-wide reputation as the leader in trussing
and temporary and custom building solutions”6 and describes its trussing products
as filling a gap in “legacy trussing systems.”7 Accordingly, as the dictionary
definition, identification of goods, and usage examples illustrate, “truss” is generic
for the goods.
Regarding the meaning of the term “mod,” the Examining Attorney submitted
copies of acronym dictionary entries showing that one of the commonly accepted
abbreviations for “mod” is “modular.”8 In turn, “modular” is defined in the
Merriam-Webster online dictionary as:
1 : of. relating to, or based on a module or a modulus
2 : constructed with standardized units or dimensions for flexibility and variety
in use 9

5 Oxford English dictionary, Final Office Action of July 26, 2016 at page 113-19.
6 4 TTABVUE 12.
7 Id.
8 See, e.g., Office Action of September 27, 2015, p. 20 at http://www.allacronyms.com/
Mod/Modular (“Mod means Modular.”).
9 At http://www.merriam-webster.com/dictionary/modular, Office Action of September 27,
2015, p. 52.
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Applicant argues that because “modular” is only one of many possible
abbreviations for the term “mod,” consumers will just as readily perceive the term
as standing for something else as they would expect that it resolves to “modular.”
We disagree. While “mod,” in other contexts, may have other meanings, in relation
to building components (trusses) made of steel or aluminum, designed to support
weight (as a roof or bridge), the evidence demonstrates that relevant consumers
will readily perceive the goods are modular units that can be put together in
various configurations, taken apart, and re-configured, and that the “mod” portion
of Applicant’s mark will be seen as an abbreviation for “modular.” There is nothing
in the record to suggest “modern trusses” as a category of trusses, or that “mod”
would be perceived as meaning “modern” or “stylish” as applied to trusses.10 The
evidence includes copies of several unrelated third parties’ online advertisements
of modular trusses for building temporary structures, showing that it is common
for trusses to be utilized in building trade show displays, exhibition booths, and
lighting and sets for stage. For example:
• MOD Displays – advertises the “Clio 10 x 10 Truss Display,” a trade
show display consisting of “reconfigurable exhibit backwalls and
counters that feature a fixed number of parts and connectors.”11 It

10 Nor is there evidence to support Applicant’s other suggested meanings for the term. While
“modern” appears to be the most likely alternative, neither it nor any of the other meanings
are contextually appropriate.
11 Final Office Action dated July 26, 2016, p.31; http://www.moddisplays.com/Clio-10-x-10-
Truss-Display-p/truss10x10-cl1.htm.
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comprises “[m]odular lengths and junctions [that] connect to create a
myriad of options.”12
The Clio 10 x 10 Truss Display is pictured below:

• Exhibitor – this online marketplace website advertises modular
exhibits as “prefabricated systems that are reconfigurable to create
different exhibit floor plans and sizes.”13
• Camelback Displays – the website advertises trussing systems under
the heading “Truss – The Backbone of Exhibits” as follows:
We Offer All Types of truss for lighting displays trade
shows, concerts, DJing, special events & more. Since we
represent all major suppliers, we offer every type of system
including aluminum and steel trusses.
Display truss is used for exhibits as a high tech, industrial
component. It can be used in retail environments for
displays & decor. Of course, truss is used on the stage,

12 Id.
13 Id. at p. 37; https:/www.exhibitoronline.com/findit/Modular-Exhibit-Systems.asp.
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where our heavy duty systems hold lighting and sets (light
truss). Our many products can be customized for unlimited
display purposes.14
Three examples of the type of modular truss systems
sold by Camelback Displays are shown below: 15

14 Id., at p. 79; https:/fit.rit.rw.camelbackdisplays.com/truss/.
15 Id., at pp. 80 and 81; https://www.camelbackdisplays.com/truss/.
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Descriptiveness is determined, not in a vacuum, but in connection with the
goods or services to which the purported mark is applied. Based on the third-party
websites, we find that consumers will have been exposed to companies selling
trusses that are versatile, easily reconfigured, set up in minutes, are portable – in
Serial No. 86664828

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short, that are modular trusses. Chief among the utilities shown in the websites
are trusses used in creating structures for events such as trade shows, exhibit
booths, media displays and stage sets and lighting. These are known to be
temporary; thus modularity is expected.
Applicant also promotes the modularity of its truss systems on its website. On
its “About Us” page, Applicant explains: “ModTruss™ components are modern,
modular pieces designed to build almost anything, anywhere, and to hold any
weight.”16 One of the pages on its website displays a “ModTruss” trussing system
used to create a large-scale awning and describes its products as “modular
engineering solutions:”
17
When considering the context in which a mark is being used, we may look to
labels, packages, displays, or advertising material directed to the goods or

16 4 TTABVUE 12.
17 Final Office Action dated July 26, 2016, p. 21; http://www.modtruss.com/.
Serial No. 86664828

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services, as that is how the purchaser encounters the mark in the marketplace. In
re Nett Designs, 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (looking
at applicant’s advertising brochures in connection with determining whether
consumers would perceive mark as descriptive); see also In re Carlson, 91 USPQ2d
1198 (TTAB 2009) (“Of course, specimens and promotional material may be used
to prove that a mark is merely descriptive, and statements made in them can show
that a term describes a feature or characteristic of the goods or services.”).
Based on the usage examples showing Applicant and third parties describe
their truss products as modular, and that they are in fact designed to be modular,
we find that Applicant’s mark MODTRUSS immediately conveys this aspect of its
building components. The fact that Applicant’s mark uses the abbreviation “mod”
as opposed to the word “modular” does not change the result, inasmuch as
abbreviations generally are considered to be merely descriptive when, as in this
case, they are understood to be substantially synonymous with the descriptive
word(s) they represent. See, e.g., In re Thomas Nelson, Inc., 97 USPQ2d 1712, 1715
(TTAB 2011) (citing Modern Optics, Inc. v. Univis Lens Co., 234 F.2d 504, 506, 110
USPQ 293, 295 (CCPA 1956)) (holding NKJV substantially synonymous with
merely descriptive term “New King James Version” and thus merely descriptive
of bibles); In re BetaBatt Inc., 89 USPQ2d 1152, 1155 (TTAB 2008) (holding DEC
substantially synonymous with merely descriptive term “direct energy
conversion” and thus merely descriptive of a type of batteries and battery-related
services).
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Applicant filed copies of eleven applications and registrations of marks
containing the term “mod” where no disclaimer thereof was required.18 Applicant
argues that this shows that the Office does not find the term to be merely
descriptive. However, of the eleven marks, all but one of them are compound
terms, comprised either of two terms without a space between them (examples:
MODMOBILES,19 MODSHOP,20 MODBONNET21) or with a hyphen between the
terms (MOD-PAD).22 No disclaimer of any component is required for such marks.
Trademark Manual of Examining Procedure (TMEP) § 1213.05(a) and §
1213.05(a)(ii) (April 2017). The remaining mark is for the design mark
; as the wording is integrated into the design, no disclaimer would be
appropriate for such mark.23 Accordingly, none of the registrations is probative on
the issue of whether “mod” is merely descriptive for building components.

18 4 TTABVUE 13-34.
19 Reg. No. 4922473, 4 TTABVUE 19.
20 Reg. No. 4523157, 4 TTABVUE 28.
21 Reg. No. 4316573, 4 TTABVUE 31.
22 Reg. No. 4251545, 4 TTABVUE 25.
23 Serial No. 86456951, 4 TTABVUE 17. In addition, this mark is subject of an application,
and not a registration; thus it has no probative value for that reason alone. Third-party
applications are evidence only of the fact that they have been filed. Interpayment Services
Ltd. v. Docters & Thiede, 66 USPQ2d 1463, 1468 n.6 (TTAB 2003).
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The predominant idea conveyed by the evidence is that the term “modtruss”
describes modular trusses. The entire phrase MODTRUSS conveys no more than
the sum of its individual parts. It immediately informs consumers that Applicant’s
goods are modular. Accordingly, Applicant’s mark MODTRUSS is merely
descriptive of Applicant’s goods.
Decision: The refusal to register under Trademark Act Section 2(e)(1) is
affirmed.