TTAB Finds "X-PIPE" Generic for ... Guess What?
In a semi-exhaustive decision, the Board granted Opposer Bassani Manufacturing's motion for summary judgment, sustaining an opposition to registration of the term X-PIPE for "internal combustion engine exhausts" on the ground of genericness. Although Applicant Campbell used the term "in the manner of a trademark" on his website, that evidence failed to overcome the "clear evidence of genericness" submitted by Bassani. Bassani Manufacturing v. Monty Allen Campbell, Opposition No. 91166939 (March 17, 2009) [not precedential].
The Board first found that the genus of Applicant's goods is "internal combustion engine exhausts which contain exhaust pipes and discharge pipes." The question, then, was whether the relevant public primarily understands X-PIPE to refer to that genus of goods.
Bassani relied on magazine articles, online publications, website printouts, copies of catalogues, and the declaration of one of Campbell's competitors, in urging genericness. [The prosecution file includes the PTO's grant of a letter of protest (filed by Bassani) that included nearly 100 pages of materials.] The Board took judicial notice of a definition of "pipe" from Delmar's Automotive Dictionary: an exhaust system.
Bassani provided "ample evidence" of use of the term "x-pipe" in a generic manner. Minor variation in the term (xpipe, XPIPE, X pipe, x pipe, X pipes, X Pipe, X Pipes, X-PIPE, X-PIPES) are "typically legally insignificant and do not avoid a finding of genericness."
Campbell asserted that Bassani's evidence came from competitors, not the public, but the Board pointed out that "competitor use is evidence of genericness." Moreover, the newspaper and magazine articles provide "strong evidence of the relevant public's perception of the designation 'x-pipe' as a generic term."
Also relevant was the use of the terms H-pipe and Y-pipe for exhaust systems and pipes "as evidence of naming conventions in the industry."
Campbell's website (below) did show use of X-PIPE in a trademark manner, but "in view of opposer's clear evidence of genericness, this evidence is not sufficient to raise a genuine issue of material fact by creating a mixed record of generic use."
The Board therefore sustained the opposition.
TTABlog comment: Oh well, Mr. Campbell may take solace in his ownership of the domain name "x-pipe.com" and his three U.S. patents.
If you had to choose, which would you rather own: the trademark registration for X-PIPE, or the domain name "x-pipe.com"?
Text Copyright John L. Welch 2009.