Modern Builders Supply, Inc.

Trademark Trial and Appeal Board

Feb 25, 2004

No. 78061994 (T.T.A.B. Feb. 25, 2004)

Mailed: 2/25/04
Paper No. 17
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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. 78061994
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Oliver E. Todd, Jr. of MacMillan, Sobanski & Todd, LLC for
Modern Builders Supply, Inc.
Tonja M. Gaskins, Trademark Examining Attorney, Law Office
112 (Janice O'Lear, 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 THERMALTECH as a trademark for "non-metal windows
and doors."1 Registration has been refused pursuant to
1 Application Serial No. 78061994, filed May 4, 2001. The
application was originally based on an asserted bona fide
intention to use the mark in commerce. After a notice of
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser No. 78061994
2
Trademark Rules 2.56 and 2.88(b)(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 all windows and doors or
their packaging manufactured by Polaris Technologies."
Response dated October 8, 2002. Applicant has further
allowance issued, applicant filed its Statement of Use on May 31,
2002. The refusal which is the subject of this appeal stems from
the examination of the Statement of Use.
Ser No. 78061994
3
explained 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 THERMALTECH 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, MASTERTECH,
MASTERCRAFT and EVERVIEW. Included in this list is
THERMALTECH.
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 THERMALTECH,
Ser No. 78061994
4
while a mark used by applicant's Polaris division, is not
the mark under which the goods to which the label is
applied are sold. On the contrary, the label states
unequivocally that THERMALTECH 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.
Decision: The refusal of registration is affirmed.