Generac Power Systems, Inc.

Trademark Trial and Appeal Board

Aug 19, 2016

No. 86079480 (T.T.A.B. Aug. 19, 2016)

This Opinion is not a
Precedent of the TTAB

Mailed: August 19, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Generac Power Systems, Inc.
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Serial No. 86079480
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Adam L. Brookman of Boyle, Fredrickson, S.C.,
for Generac Power Systems, Inc.

Tejbir Singh, Trademark Examining Attorney, Law Office 106,
Mary I. Sparrow, Managing Attorney.
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Before Mermelstein, Heasley and Lynch,
Administrative Trademark Judges.
Opinion by Lynch, Administrative Trademark Judge:

Generac Power Systems, Inc. (“Applicant”) seeks registration on the Principal
Register of the mark POWER DIAL in standard characters for “Mechanical controls
for use in connection with portable generators and pressure washers” in
International Class 7 and “Electronic controls for use in connection with portable
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generators and pressure washers” in International Class 9.1 Applicant has
disclaimed DIAL.
The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(e)(1), 15 U.S.C. § 1052(e)(1), as merely descriptive of the identified
goods. After the Trademark Examining Attorney made the refusal final, Applicant
appealed to this Board. We affirm the refusal to register.
Section 2(e)(1) of the Trademark Act precludes registration of “a mark which,
(1) when used on or in connection with the goods of the applicant is merely
descriptive . . . of them.” 15 U.S.C. § 1052(e)(1). A term is merely descriptive within
the meaning of Section 2(e)(1) “if it immediately conveys knowledge of a quality,
feature, function, or characteristic of the goods or services with which it is used.” In
re Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed.
Cir. 2012) (quoting In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828,
1831 (Fed. Cir. 2007)); see also In re TriVita, Inc., 783 F.3d 872, 114 USPQ2d 1574,
1575 (Fed. Cir. 2015).
Descriptiveness must be assessed “in relation to the goods for which registration
is sought, the context in which it is being used, and the possible significance that
the term would have to the average purchaser of the goods because of the manner of
its use or intended use.” Bayer Aktiengesellschaft, 82 USPQ2d at 1831 (citing In re
Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA 1978)). The
identification of goods controls the analysis “regardless of what the record may

1 Application Serial No. 86079480 was filed on October 1, 2013, asserting both first use and
first use in commerce on December 31, 2012.
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reveal as to the particular nature of an applicant’s goods.” See In re Cordua Rests.,
Inc. 823 F.3d 594, 118 USPQ2d 1632, 1636 (Fed. Cir. 2016) (quoting Octocom Sys.,
Inc. v. Houston Computer Servs., Inc., 918 F.2d 937, 16 USQP2d 1783, 1787 (Fed.
Cir. 1990)). The inquiry involves whether someone familiar with the identified
goods will understand the mark to convey information about them, rather than
consideration of the mark in the abstract. DuoProSS Meditech Corp. v. Inviro Med.
Devices Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012); Abcor Dev.,
200 USPQ at 218; In re Remacle, 66 USPQ2d 1222, 1224 (TTAB 2002).
Applicant’s identified goods are controls for portable generators and pressure
washers. Applicant acknowledges that “the controls in question are in the form of a
dial, hence Applicant’s acceptance of the disclaimer for ‘dial.’”2 See In re Pollio Dairy
Prods. Corp., 8 USPQ2d 2012, 2014 n.4 (TTAB 1988) (“By its disclaimer of the word
LITE, applicant has conceded that the term is merely descriptive as used in
connection with applicant’s goods”); see also Quaker Oil Corp. v. Quaker State Oil
Refining Corp., 161 USPQ 547 (TTAB 1969), aff’d 453 F.2d 1296, 172 USPQ 361
(CCPA 1972). Evidence in the record also supports the descriptiveness of DIAL for
controls such as those identified in the subject application.3 However, Applicant
contends that the POWER portion of the mark is not descriptive, as Applicant’s
controls “do not regulate the power of generators or pressure washers.”4 In support,
Applicant puts aside its broad identification and points to its website’s description

2 10 TTABVUE 6 (Applicant’s Brief).
3 E.g., January 15, 2014 Office Action at 3 (definition); August 6, 2015 Office Action at 13
(descriptive use of “dial” on Applicant’s website in connection with its controls).
4 10 TTABVUE 6 (Applicant’s Brief).
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of the actual products as controlling “fuel valve, choke, start, and shut down” “on a
single dial.”5 Applicant also relies on a patent application that it alleges covers the
goods at issue, which is directed to a control that can prime and choke the engine to
start it.6 The patent application teaches a control system that uses a dial to
manipulate “operation of an engine of a portable engine powered device,” including
“a choke and primer control that simplifies starting of the engine.”7
Definitions in the record show that “Power,” in the context of a mechanical or
electrical device, is defined as “The energy or motive force by which a physical
system or machine is operated,” “The capacity of a system or machine to operate,”
“Electrical or mechanical energy,” and “Physical strength or force exerted or capable
of being exerted.”8 Applicant’s identified electronic and mechanical controls for
portable generators and pressure washers are broad enough to include controls that
activate the power of these machines by, for example, starting the engine. Thus,
Applicant’s contentions about limitations of its actual goods are irrelevant. See
Cordua Rests., 118 USPQ2d at 1636 (Section 2(e)(1) refusal is assessed as to the
identified, rather than actual, goods or services).
Nonetheless, Applicant’s website illustrates the descriptiveness of the identified
controls because Applicant’s goods control the power of its portable generators by

5 Id.; see also August 6, 2015 Office Action at 12.
6 July 29, 2015 Response to Office Action at 4-16 (patent application).
7 Id. at 6 (patent application Abstract).
8 January 29, 2015 Office Action at 4 (The American Heritage Dictionary online, entry for
“power”).
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controlling, inter alia, the “start” and “shut down” of these machines. Applicant’s
website directs users of the “PowerDial” on its portable generator as follows:9
1. Turn the dial to the Start position.
2. Push the dial on electric start models to start the generator….
3. Turn the dial to Run.
When it’s time to shut the generator off, simply turn the dial to Stop.
According to a description of one of Applicant’s generators on the Lowe’s website,
the “PowerDial feature integrates the start, run, and stop functions into one simple-
to-use dial, conveniently located for quicker startup and shut-down.”10 As noted
above, the patent application also sets out a control used in connection with starting
a machine. This evidence provides further support for what is apparent from the
broadly identified controls – that they may be used for what is commonly referred to
as turning the power on or off.
Again improperly relying on alleged marketplace reality rather than the
identification of goods, Applicant asserts that its power washer control is a dial that
“is used to vary the pressure of the sprayer.”11 Applicant claims that in the context
of its controls for power washers, “POWER” refers to the increased “velocity of water
through a nozzle by use of a motor in a manner that exceeds ordinary flow.”12 We
again reject any attempt to deviate from the identified goods. Moreover, we find

9 August 6, 2015 Office Action at 13 (www.generac.com).
10 January 29, 2015 Office Action at 6 (www.lowes.com).
11 10 TTABVUE at 9 (Applicant’s Brief).
12Id.
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that this use of “power” is consistent with the previously noted definition of power
as “Physical strength or force exerted or capable of being exerted.”13 It also is
consistent with the use of “power dial” in a descriptive sense in several online
articles introduced by the Examining Attorney. One such article from the eHow
website on “How to Attach the Nozzles for a Karcher Electric Pressure Washer”
instructs the user to “Switch the pressure washer off by turning the power dial to
the position marked ‘0.’”14 Another article on “Power Pressure Washers” notes the
ability to “vary the pressure from adjusting the power dial or the spray gun handle
to ensure that the right power best cleans the right places.”15 Thus, the POWER
portion of the mark still describes a significant feature of the identified goods, i.e.
that the control governs the power of the sprayer. The articles constitute evidence of
“power dial” being used to describe goods such as the mechanical and electronic
controls identified by Applicant.
While Applicant notes that its dials may control other aspects of the machines,
such as priming or choking the engine, “[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 Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1371 (Fed. Cir.
2004). “A mark ‘need not recite each feature of the relevant goods or services in
detail to be descriptive,’ it need only describe a single feature or attribute.”
Chamber of Commerce of the U.S., 102 USPQ at 1219. In this case, Applicant’s mark

13 January 29, 2015 Office Action at 4 (The American Heritage Dictionary online, entry for
“power”).
14 Id. at 9 (www.ehow.com).
15 Id. at 8 (www.articlecity.com).
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describes the feature that the dial is used to turn the machine’s power on or off, and
in the case of the power washers, it may also describe that the dial controls the
degree of power, or spray pressure.
We note that when a mark such as Applicant’s combines two descriptive terms,
the descriptiveness analysis turns on whether the combination of terms evokes a
new and unique commercial impression. We find no such new and unique
commercial impression from the combination of POWER and DIAL in this case. “In
considering a mark as a whole, the Board may weigh the individual components of
the mark to determine the overall impression or the descriptiveness of the mark
and its various components.” Oppedahl & Larson, 71 USPQ2d at 1372. If the
combination retains the descriptive significance of the individual parts, the mark as
a whole must be considered merely descriptive. In re Petroglyph Games Inc., 91
USPQ2d 1332, 1337 (TTAB 2009) (BATTLECAM merely descriptive for computer
game software); see also In re Phoseon Tech., Inc., 103 USPQ2d 1822, 1823 (TTAB
2012) (holding SEMICONDUCTOR LIGHT MATRIX merely descriptive of light and
UV curing systems composed primarily of light-emitting diodes for industrial and
commercial applications). The only argument Applicant offers as to any
nondescriptive meaning from the combination is that in the context of its controls
for power washers, POWER DIAL “is a play on the word ‘power’ in the name ‘power
washer.’”16 However, this does not constitute word play, but rather underscores that
the dial may be used to activate and control the degree of pressure, or power, of the

16 10 TTABVUE at 9 (Applicant’s Brief).
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power washer, such that the mark retains a merely descriptive significance. We find
that Applicant’s mark is not the type of unitary expression or incongruous meaning
that could avoid mere descriptiveness. See generally In re Colonial Stores Inc., 394
F.2d 549, 157 USPQ 382 (CCPA 1968) (“unusual association or arrangement in the
applicant’s mark [SUGAR & SPICE] results in a unique and catchy expression
which does not, without some analysis and rearrangement of its components
suggest the contents of applicant’s goods”); see also In re Shutts, 217 USPQ 363,
364-65 (TTAB 1983) (finding suggestiveness, rather than descriptiveness, of
“hitherto unused and somewhat incongruous word combinations whose import
would not be grasped without some measure of imagination and ‘mental pause’”).
The record contains evidence, of which Applicant is critical, of the use of “power
dial” or “power control dial” in connection with controls on mechanical and electrical
devices other than generators and power washers.17 Examples include: a camera
allowing the user to “Adjust flash output power with the Power Dials;”18 intelligent
DC power supplies whose “Controls” include a “Power Dial setting;” a paint sprayer
with an “Air Power Dial;”19 and hydraulic power lifts “Available With Power Dial
Control.”20 Although we agree with Applicant that the record does not support a
finding that such goods are related to Applicant’s, this evidence nonetheless has
some probative value to show that the combination of the descriptive terms POWER

17 August 6, 2015 Office Action at 5-13.
18 Id. at 8.
19 Id. at 9.
20 Id. at 10
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and DIAL does not create an unusual commercial impression or incongruity.
Rather, the combination appears somewhat commonplace to refer to a control dial
for some form of power in mechanical and electrical devices.
Accordingly, consumers would immediately understand POWER DIAL, when
used in connection with Applicant’s identified goods, to describe a key feature of
those goods. We therefore find that POWER DIAL is merely descriptive.
Decision: The refusal to register Applicant’s mark POWER DIAL as merely
descriptive is affirmed.