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Specimen Showing Shower Setting, Not Shower Head

Posted by James Juo | May 01, 2023 | 0 Comments

An acceptable specimen for a trademark application must show that the trademark has been used as an indicator of source with respect to the goods named in the application. In re Bose Corp., 546 F.2d 893, 192 USPQ 213, 216 (CCPA 1976); see also In re Fallon, 2020 USPQ2d 11249 (TTAB 2020); In re Settec, Inc., 80 USPQ2d 1185 (TTAB 2006).

The test for an acceptable specimen “is simply that it must in some way evince that the mark is ‘associated' with the goods and serves as an indicator of source.” In re Sones, 590 F.3d 1282, 93 USPQ2d 1118, 1123 (Fed. Cir. 2009); see also TMEP § 904.07(a) (July 2022) (explaining that a specimen must show use of the mark for the goods identified in the application).

Kohler applied for a trademark registration of the POWERZONE mark for “Shower heads” in class 11, but the specimens were refused because they showed that POWERZONE was used to identify one of three spray settings for a shower head, and not for the shower head itself. In re Kohler, Ser. No 88796957 (TTAB Apr. 28, 2023).

Applicant's specimens fail to support the use of Applicant's mark for Applicant's goods. Both specimens expressly identify POWERZONE as a spray setting; thus, consumers are likely to perceive POWERZONE as a source identifier for “spray settings,” not “Shower heads.”

While a mark can refer to both a product and a feature of that product, the TTAB found that consumers and prospective consumers would perceive POWERZONE in the specimen as identifying only a “shower setting,” not “Shower heads.”

Because Applicant's specimens do not show POWERZONE being used in association with the goods identified in the application, namely, “Shower heads,” the TTAB affirmed the refusal to register.

Thomas P. Howard, LLC is experienced in trademarks nationwide including in Colorado.

About the Author

James Juo

James Juo is an experienced intellectual property attorney. He has successfully litigated various intellectual property disputes involving patents, trademarks, copyrights, and trade secrets. He also has counseled clients on the scope and validity of patent and trademark rights.


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