Radiant Technology, Inc.

Trademark Trial and Appeal Board

Jul 8, 1997

EX (T.T.A.B. Jul. 8, 1997)

THIS DISPOSITION IS NOT CITABLE
AS PRECEDENT OF THE TTAB JULY 8, 1997
Paper No. 19
GDH/TLW
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Radiant Technology, Inc.
________
Serial No. 74/305,777
_______
Edward A. Pennington of Morgan & Finnegan for Radiant Technology,
Inc.
Richard G. Cole, Trademark Examining Attorney, Law Office 104
(Sidney I. Moskowitz, Managing Attorney).
_______
Before Simms, Seeherman and Hohein, Administrative Trademark
Judges.
Opinion by Hohein, Administrative Trademark Judge:
An application has been filed by Radiant Technology,
Inc. to register the designation "RADIANTPANEL" as a trademark
for "household hot water baseboard heaters."1
Registration has been finally refused under Section 23
of the Trademark Act, 15 U.S.C. §1091, on the basis that the

1 Ser. No. 74/305,777, filed on August 20, 1992, which alleges dates
of first use of November 6, 1989. Although registration was
originally sought on the Principal Register, applicant amended the
application to the Supplemental Register on August 20, 1993 in
response to a final refusal on the ground of mere descriptiveness
under Section 2(e)(1) of the Trademark Act, 15 U.S.C. §1052(e)(1).
Ser. No. 74/305,777
2
designation "RADIANTPANEL" is not capable of distinguishing the
applicant's goods.
Applicant has appealed. Briefs have been filed, but an
oral hearing was not requested. We affirm the refusal to
register.
It is essentially the Examining Attorney's position, as
stated in his final refusal, that combining the generic terms
"RADIANT" and "PANEL" into the designation "RADIANTPANEL" results
in a "generic name for a significant COMPONENT of the applicant's
baseboard heating units" which is thus incapable of
distinguishing applicant's goods. In particular, the Examining
Attorney notes that, as stated therein, applicant's advertising
literature lists the principal "COMPONENTS" of its "HOT WATER
BASEBOARD HEATING" product as: "RADIANTPANELS," which are
"[m]ade of heavy gauge, high quality, extruded aluminum"; various
"FITTINGS," which "permit easy access to [such] heating panels";
a "DISTRIBUTION MANIFOLD"; and "POLYETHYLENE CROSSLINKED TUBING".
Applicant's literature also states, among other things, that
"Radiantpanel is the most advanced concept in perimeter baseboard
heating"; that "Radiantpanel provides superior comfort by warming
you directly with radiant heat, just like the sun"; that
"Radiantpanels are 1" deep, 5d" high, and are available in
varying lengths"; and that "Radiant heat[,] by nature, is energy
efficient because it delivers higher levels of comfort at lower
thermostat settings."
In addition, the Examining Attorney relies upon a
heating trade publication, issued by the Hydronics Institute and
Ser. No. 74/305,777
3
made of record by applicant, which on the first page thereof
makes reference to "Radiant Panel Heating" as a type of hydronic
heating system. Such reference, the Examining Attorney argues in
his brief, clearly and unequivocally "indicates trade usage and
recognition of the term sought to be registered in the GENERIC
sense." Other evidence of trade usage and recognition is shown,
according to the Examining Attorney, by the copies he made of
record of four "prior registrations wherein the terms 'radiant
panel' and 'radiant panels' have been used (as early as 1968) in
a generic manner by ... other businesses to identify their
specific heating units, or components thereof." Specifically,
Reg. No. 853,215, issued on July 23, 1968, sets forth goods
identified as "ELECTRIC RADIANT PANEL SPACE HEATERS"; Reg. No.
1,030,567, issued On January 20, 1976, includes such heating
units as "RADIATORS; RADIANT PANELS; [AND] RADIANT HEATERS"; and
Reg. Nos. 1,159,814 and 1,177,036, respectively issued to the
same third party on July 7, 1981 and November 10, 1981, list
goods described as "ELECTRIC HEATING UNITS OF ALL TYPES AND PARTS
THEREFOR--NAMELY, ... RADIANT PANELS".
Moreover, as further support for his position, the
Examining Attorney relies upon excerpts of "articles from
DATATIMES INFORMATION NETWORK [which] show conclusively that
within the heating industry, the term 'radiant panel' or 'radiant
panels' is in extensive use to generically identify certain types
of room or area heating sources." Such excerpts, the Examining
Attorney maintains, "not only indicate that applicant is probably
not only not the first to use the term, but certainly is not the
Ser. No. 74/305,777
4
only one" and that "every such reference will be seen to refer to
some type of radiant heating system in terms of a 'radiant' panel
or panels as defining a specific TYPE of heat source."
The most pertinent of the excerpts of articles
retrieved by the Examining Attorney from the "DATATIMES
INFORMATION NETWORK" database are reproduced below in relevant
part (emphasis added):2
"I'll use radiant panel heating, because
it provides heat without circulating dust-
borne pollutants like forced air does," Vos
says.
Radiant panel heating circulates 125-
degree water through tubes covered by a thin
layer of light cement. ....
Art Botts is getting radiant panel
heating on both levels of his Frank Lloyd
Wright-style, hip-roofed home. .... -- Grand
Rapids Press, July 18, 1993, at i1;
Radiant panel radiators put out usable
heat at relatively low water temperatures.
This means they are compatible with water-
source heat pumps, solar hydronics and reset
fossil fuel boilers, to name a few.
Moreover, they are not inherently in conflict
with low temperature distribution systems
such as radiant floor heating
PHOTO: A European radiant panel and
towel warmer match comfort, quality and
aesthetics. -- Contractor, February 1, 1991,
at 35;

2 Although forming part of the record, we have given no consideration
to those excerpts which refer to "radiant panel test," "radiant panel
tests" or "radiant panel flammability tests". Such references are
considered irrelevant and immaterial inasmuch as a "radiant panel
test," which the page from the Dictionary of Architecture and
Construction made of record by the Examining Attorney defines at 393
as "[a]n ASTM standard method of test for the surface flammability of
a material, using a radiant heat source," appears to have nothing to
do, in and of itself, with household heating systems of any kind.
Ser. No. 74/305,777
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Electric baseboard units, quartz and
ceramic heaters are all "resistance heaters"
and all produce exactly the same amount of
heat from each kilowatt-hour of electricity
they use. So does an electric toaster, iron,
furnace, radiant panel, infrared bulb or
stove element, for that matter. -- Toronto
Star, March 10, 1990, at E10; Ottawa Citizen,
March 10, 1990 at D2; and Edmonton Journal,
January 20, 1990, at F2;
With the sound of the voice, a radiant
panel above or below the work surface allows
adjustment of the work station temperature
.... -- Chicago Tribune, July 9, 1989, Home,
at 12;
Among its features was a "radiant panel
heating system," consisting of a small
furnace in the ceiling of the utility room
that pushed hot air across the metal ceilings
of the other rooms .... -- Dallas Morning
News, March 13, 1989, at 1C;
The building will feature radiant panel
heating .... -- Ottawa Citizen, January 23,
1989, at A20;
The sun's radiated energy does heat the
earth and the things on it when it comes in
contact with it. The electric radiant panel
works the same way. The radiated energy from
the panels heat the objects in the room
including you. -- Calgary Herald, January 7,
1989, at D2; and
Bob Haynie, technical research engineer
with Arkansas Power and Light, listed four
types of electric space heaters: Quartz-
infrared, fan forced, wound wire radiant and
a radiant panel that resembles a picture when
it's hung on the wall. -- Arkansas Gazette,
February 8, 1985, at 1E.
Finally, we note that the Examining Attorney has made
of record a page from the Dictionary of Architecture and
Construction which at 393 defines "radiant heating system" as
Ser. No. 74/305,777
6
"[a] system for heating a room or space by means of heated
surfaces (such as panels heated by the flow of hot water or
electric current) which provide heat primarily by radiation"
(emphasis added). In addition, we judicially notice the
following pertinent definitions from Webster's New World College
Dictionary (3d ed. 1997) at, respectively, 975 and 1107 (emphasis
added):3
"panel," which among other things is
defined as "2 a section or division of a
wall, ceiling, or other surface; specif., ...
b) a flat piece, usually rectangular, forming
a part of the surface of a wall, door,
cabinet, etc., and usually raised, recessed,
framed, etc. c) a similar piece used for
enclosing or covering something or serving as
a light diffuser, a built-in heating element
in space heating, etc. ...";
"radiant," which is listed, inter alia,
as meaning "4 issuing (from a source) in or
as in rays; radiated [radiant energy]"; and
"radiant heating," which is set forth as
"a method of heating a space by means of
radiation, as from electric coils, hot-water
or steam pipes, etc. installed in the floor
or walls."
Similarly, The Random House Dictionary of the English Language
(2d ed. 1987) at 1401 and 1592 respectively provides the
following relevant definitions (emphasis added):

3 The Board may properly take judicial notice of dictionary
definitions. See, e.g., Hancock v. American Steel & Wire Co. of New
Jersey, 203 F.2d 737, 97 USPQ 330, 332 (CCPA 1953) and University of
Notre Dame du Lac v. J. C. Gourmet Food Imports Co., Inc., 213 USPQ
594, 596 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir.
1983).
Ser. No. 74/305,777
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"panel," which is defined, inter alia,
as "1. a distinct portion, section or
division of a wall, wainscot, ceiling, door,
shutter fence, etc., esp. of any surface sunk
below or raised above the general level or
enclosed by a frame or border";
"panel heating," which is listed as the
"heating of a room or building by means of
wall, ceiling, floor, or baseboard panels
containing heating pipes or electrical
conductors";
"radiant," which among other things is
defined as "3. Physics emitted or propagated
Ser. No. 74/305,777
8
by radiation"; and
"radiant heating," which is set forth as
"1. the means of heating objects or persons
by radiation in which the intervening air is
not heated. 2. a system for heating by
radiation from a surface, esp. from a surface
heated by means of electric resistance, hot
water, etc."
Applicant, however, maintains that its goods are
generically known as "heaters" or "heating units" and that the
Examining Attorney has failed to show otherwise. In particular,
applicant insists that, "[c]ontrary to the examining attorney's
assertion, the mark RADIANTPANEL is not used by the industry as a
common descriptive or generic term." As support for its position
that the designation "RADIANTPANEL" is capable of distinguishing
its household hot water baseboard heaters, applicant refers to a
heating trade publication (© 1992), issued by The Hydronics
Institute, in which "commercially available heating units of the
same type as the applicant's goods ... are referred to ... as
'baseboards', 'hydronic heating systems', and 'radiators', but
not as 'radiant panels'." Thus, according to applicant:
[I]t is clear that there are several other,
more apt terms for "describing" Applicant's
goods. The fact that other terms are
available (and in fact are more prevalent)
militates against the examining attorney's
supposition that RADIANTPANEL cannot be
"capable of distinguishing Applicant's goods
from those of others.
Applicant also relies upon a product brochure (© 1988)
it made of record from one of its competitors, Embassy
Industries, Inc., which refers therein to a "PANEL-TRACK" heating
Ser. No. 74/305,777
9
product as a "HYDRONIC BASEBOARD". Inasmuch as "[n]either the
word RADIANTPANEL nor the words RADIANT PANEL appear ...
generically or descriptively on the brochure," applicant contends
that such evidence, like the heating trade publication mentioned
previously, "weighs against that of the examining attorney's, and
is sufficient to show that the mark is capable of distinguishing
the appellant's goods." Consequently, while admitting that "the
heating system sold by Applicant includes a plurality of
baseboard units that 'radiate' heat," applicant urges that the
designation "RADIANTPANEL" has not been shown to be generic for
its product.
Turning, therefore, to the standard for registrability,
it is well settled that a designation must be capable of serving
as an indicator of source in order for it to be registrable on
the Supplemental Register. Whether a designation has the
capacity necessary for registration on the Supplemental Register
is determined by considering the meaning thereof as applied to
the goods or services, the context in which it is used on the
specimens filed with the application, and the likely reaction
thereto by the average customer upon encountering the designation
in the marketplace. See In re Cosmetic Factory, Inc., 208 USPQ
443, 447 (TTAB 1980). "The test is not whether the mark is
already distinctive of the applicant's goods [or services], but
whether it is capable of becoming so." In re Bush Brothers &
Co., 884 F.2d 569, 12 USPQ2d 1058, 1059 (Fed. Cir. 1989), citing
In re Simmons Co., 278 F.2d 517, 126 USPQ 52, 53 (CCPA 1960). A
generic designation, as noted in H. Marvin Ginn Corp. v.
Ser. No. 74/305,777
10
International Association of Fire Chiefs, Inc., 728 F.2d 987, 228
USPQ 528, 530 (Fed. Cir. 1986), is incapable of registration on
either the Principal Register or the Supplemental Register.
In the case of a generic designation, the burden is on
the Patent and Trademark Office to show the genericness of the
designation by "clear evidence" thereof. In re Merrill Lynch,
Pierce, Fenner & Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1143
(Fed. Cir. 1987). See also In re Gould Paper Corp., 834 F.2d
1017, 5 USPQ2d 1110, 1111 (Fed. Cir. 1987). As to the standard
for evaluating genericness, the Board in In re Leatherman Tool
Group Inc., 32 USPQ2d 1443, 1449 (TTAB 1994), noted that:
The test for determining whether a
designation is generic, as applied to the
goods [or services] set forth in an
application or registration, turns upon how
the term is perceived by the relevant public.
See Magic Wand Inc. v. RDB Inc., 940 F.2d
638, 19 USPQ2d 1551, 1552-53 (Fed. Cir. 1991)
and cases cited therein at 1553. Such
perception is the primary consideration in a
determination of genericness. See Loglan
Institute Inc. v. Logical Language Group
Inc., 962 F.2d 1038, 22 USPQ2d 1531, 1532
(Fed. Cir. 1992). As Section 14(3) of the
Trademark Act, 15 U.S.C. §1064(3), makes
clear, "[a] ... mark shall not be deemed to
be the generic name of goods [or services]
solely because such mark is also used as a
name to identify a unique product [or
service]"; instead, "[t]he primary
significance of the ... mark to the relevant
public rather than purchaser motivation shall
be the test for determining whether the ...
mark [is or] has become the generic name of
the goods [or service] on or in connection
with which it has been used." Consequently,
if the designation sought to be registered is
understood by the relevant public primarily
to refer to the class or genus of goods at
issue, the term is generic. See H. Marvin
Ser. No. 74/305,777
11
Ginn Corp. v. International Association of
Fire Chiefs, Inc., supra. Evidence of the
relevant public's understanding of a term may
be obtained from any competent source,
including newspapers, magazines,
dictionaries, catalogs and other
publications. See In re Northland Aluminum
Products, Inc., 777 F.2d 1566, 227 USPQ 961,
963 (Fed. Cir. 1985).
Upon careful consideration of the entire record, we
agree with the Examining Attorney that the designation
"RADIANTPANEL" is a generic term for a significant component of
applicant's household hot water baseboard heaters, namely, the
radiant heating panels used therein. See, e.g., Remington
Products Inc. v. North American Philips Corp., 892 F.2d 1576, 13
USPQ2d 1444, 1448 (Fed. Cir. 1990) [omission of word "PERSONAL"
from phrase "TRAVEL CARE" does not obviate generic
descriptiveness of such phrase, which is "incapable of
designating origin," for personal travel care products].
Clearly, a panel which radiates something, in this case heat, is
a radiant heating panel, a radiant panel heater, or--most simply
put--a radiant panel. Applicant's own product literature
reflects the generic significance of the designation
"RADIANTPANEL," referring to "RADIANTPANELS" as one of the major
components of its baseboard heaters and stating that its
"Radiantpanels are 1" deep, 5d" high, and are available in
varying lengths."
In addition, the heating trade publication furnished by
applicant demonstrates that, in the context of baseboard hot
water heating systems, the primary significance of the
Ser. No. 74/305,777
12
terminology "RADIANTPANEL" is that of a generic designation since
it refers therein to "Radiant Panel Heating" as one kind of
hydronic or hot water radiant heating system. That such
publication also refers generically to goods of the type sold by
applicant by such terms as "baseboards," "hydronic heating
systems" and "radiators," and that a brochure utilized by one of
applicant's competitors does not use the term "RADIANTPANEL" or a
variation thereof (such as "radiant panel" or "radiant heating
panel") is not dispositive. Rather, such evidence is simply
outweighed by the clear and unambiguous evidence of generic use
in the heating systems trade which is disclosed by the third-
party registrations and pertinent excerpts from the "DATATIMES
INFORMATION NETWORK" of the phrases "radiant panel" and "radiant
panels," which convey precisely the same meaning as the
designation "RADIANTPANEL."
Finally, it is clear from the dictionary definitions
that the purchasing public, including the general public as well
as heating system contractors and retailers, would immediately
understand that, when joined to form the designation
"RADIANTPANEL," the individual words "RADIANT" and "PANEL" have a
meaning identical to the meaning which ordinary usage would
ascribe to those terms in combination. See, e.g., In re Gould
Paper Corp., supra at 1112 ["SCREENWIPE" for a "premoistened,
antistatic cloth for cleaning computer and television screens" is
incapable of being registered]; Cummins Engine Co., Inc. v.
Continental Motors Corp., 359 F.2d 892, 149 USPQ 558, 561 (CCPA
1966) ["TURBODIESEL" for "internal combustion engines" is
Ser. No. 74/305,777
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incapable of registration for diesel engines with exhaust-driven
turbine superchargers]; In re Pennzoil Products Co., 20 USPQ2d
1753, 1758-60 (TTAB 1991) ["MULT-VIS" for "multiple viscosity
motor oil" is generic and incapable of registration]; and In re
Wickerware, Inc., 227 USPQ 970, 971 (TTAB 1985) ["WICKERWARE" for
"mail order and distributorship services in the field of wicker
furniture and accessories" is generic for "a central
characteristic of appellant's services" and thus is incapable of
registration]. There is simply nothing unique or incongruous
about the combination, nor would it have any meaning other than,
as plainly shown by the third-party registrations, the relevant
"DATATIMES INFORMATION NETWORK" excerpts, the portion of trade
publication cited by the Examining Attorney and the applicant's
own product literature, generically signifying a radiant panel
heating component of applicant's household hot water baseboard
heaters.
Accordingly, because the designation "RADIANTPANEL" has
been demonstrated to primarily signify only a category or class
which forms a principal component of applicant's goods, the
Patent and Trademark Office has met its burden of establishing by
clear evidence that such designation is generic and, thus, is
incapable of registration.
Decision: The refusal under Section 23 is affirmed.
R. L. Simms
E. J. Seeherman
Ser. No. 74/305,777
14
G. D. Hohein
Administrative Trademark Judges,
Trademark Trial and Appeal Board