Monday, October 06, 2008

TTAB Reverses Mere Descriptiveness Refusal of "MASTER PLUMBER" for Plumbing Products

Reversing three Section 2(e)(1) refusals to register, the Board found the mark MASTER PLUMBER not merely descriptive of a variety of plumbing items, including sump pumps, garbage disposals, toilet repair parts, faucets, and ventilating ducts. It concluded that the goods "appear to be goods which 'do-it yourselfers' or others who are not master plumbers could and would purchase," and that these purchasers would see the mark as merely suggestive. In re True Value Company, Serial Nos. 78841512, 78841539, and 78841557 (September 19, 2008) [not precedential].

The PTO contended that "master plumber" is an accepted designation for a professional, licensed plumber, and that the subject mark thus describes "an intended user of the goods."

True Value maintained that, for purposes of a mere descriptiveness refusal, a mark must describe an "appreciable number" of individuals to whom the goods or services are directed. It pointed to numerous articles that "tout applicant's goods as being targeted to 'do-it-yourself homeowners.'" [TTABlog query: hearsay?]. Accordingly, True Value argued that the mark does not describe an appreciable number of its intended customers, but is instead merely suggestive of the "professional quality that a do-it-yourself homeowner can obtain from applicant's products." It pointed to several cases that distinguish between "goods targeted to professionals, and goods targeted to a general consumer who wishes to have professional-style results."

The Board sided with True Value. It acknowledged "the existence of a group of possible consumers known as 'master plumbers,'" but the question was whether this was an "appreciable number." According to the Board, True Value submitted probative evidence to the contrary.

"Furthermore, there is nothing in the identification of goods in these applications which limits the class of consumers to 'master plumber,' nor is there anything inherent in the nature of the listed items which would limit their use to 'master plumbers.'" [TTABlog comment: this begs the question, doesn't it? Why isn't there a limitation in the identification of goods that says "intended for do-it-yourself homeowners"?]

The Board then jumped to the conclusion that "'do-it-yourselfers' would likely constitute the overwhelming majority of purchasers, and these purchasers would likely to perceive the suggestive meaning of the mark."

Recognizing the "fine line" between suggestive and descriptive marks, and noting that an applicant is entitled to the benefit of doubt under Section 2(e)(1), the Board reversed the refusal.

TTABlog comment: As an occasional do-it-yourself homeowner, I have tackled a few, minor plumbing projects. But how many homeowners would tackle installation of a garbage disposal, a toilet tank, a spa water pump, or ventilating ducts? Not me. I'd call a master plumber. There's an old saying where I come from: A homeowner who tries to fix his own plumbing has a fool for a plumber. Or something like that.

PS: DW asks whether, under local building codes, installation of some of these items can be done legally by someone other than a licensed plumber?

Text Copyright John L. Welch 2008.


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