TTAB Found "FOUNDRY" Deceptively Misdescriptive of Non-Foundry Faucets

The Board affirmed a Section 2(e)(1) refusal to register the mark FOUNDRY, finding it deceptively misdescriptive of "plumbing products, namely, faucets." Applicant Delta stated that the goods are not manufactured in a foundry, nor are they cast metal, but it argued that the mark may be perceived as "fanciful" and merely a reference to the "industrial style" of applicant's faucet collection. In re Delta Faucet Co., Serial No. 87001991 (May 10, 2019) [not precedential] (Opinion by Judge Angela Lykos).

A mark is deceptively misdescriptive if (1) it misdescribes a quality, feature, function, or characteristic of the goods or services with which it is used; and (2) consumers would be likely to believe the misrepresentation. For a term to misdescribe the goods it must be "merely descriptive of a significant aspect of the goods which the identified goods could plausibly possess."

Examining Attorney Nelson B. Snyder III submitted dictionary definitions of foundry as "(1) the act, process, or work of melting and molding metals; (2) metal castings; and (3) a place where metal is cast." He also submitted a registration for faucets in which the term FOUNDRY was disclaimed, and numerous other registrations showing FOUNDRY disclaimed for other metal goods such as pipes and manhole covers. Based on this evidence, the Board concluded that "foundry" describes a significant feature of the identified goods: i.e., that they are made from metal castings and/or are produced in this type of facility.

To determine whether FOUNDRY misdescribes the goods, the Examining Attorney issued a Rule 2.61 request for information, asking whether any of the identified goods, or parts thereof, are or will be produced in a foundry. Applicant Delta said no, the goods are made with stamped components.

The Board therefore found that the first prong of the test was met. As to the second prong, whether consumers would believe the misrepresentation, the Examining Attorney pointed to evidence that competitors promote the fact that they manufacture their plumbing products, such as faucets, from metal castings and in foundries. Thus consumers are accustomed to seeing such plumbing products made from metal products and produced in a foundry. Therefore it is likely that consumers will be deceived by the misrepresentation.

As to Delta's argument that consumer will see the mark as "fanciful," the Board was skeptical, in light of the evidence, that consumers would ascribe any fanciful meanings to the applied-for mark.

And so the Board affirmed the refusal under Section 2(e)(1).

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TTABlog comment: Is the mark deceptive under Section 2(a)? That would require proof that the misdescription is material to the purchasing decision. Of course, if deceptive, the applied-for mark would be unregistrable. On the other hand, a mark that is deceptively misdescriptive is still eligible for registration via a showing of acquired distinctiveness.

Text Copyright John L. Welch 2019.