IP Law Daily, TRADEMAERK—TTAB: Board affirms refusal to register POWERZONE for Kohler shower heads, (May 3, 2023)

By Donielle Tigay Stutland, J.D.

Kohler’s submitted specimens failed to show POWERZONE as an indicator of source for “Shower heads.”

The Trademark Trial and Appeal Board has affirmed the decision of an examining attorney to refuse the registration of the mark “POWERZONE,” for “Shower heads” in International Class 11 on the ground that specimens submitted by applicant The Kohler Co. did not show use of the proposed mark on or in connection with the identified goods. The Board agreed with the examining attorney that specimens provided by the plumbing fixture company expressly identify POWERZONE as a spray setting on the shower heads; thus, consumers are likely to perceive the mark as a source identifier for “spray settings,” not “Shower heads.” The Board also found that based on the original specimen, that consumers will use the AQUIFER mark to ask for Applicant’s “Shower heads” instead (In re: Kohler Co., April 28, 2023, Johnson, M.).

Background. Kohler is the manufacturer of plumbing fixtures and plumbing products, among other goods. Kohler applied to register the mark “POWERZONE” for “Shower heads” in International Class 11. The examining attorney refused to register the mark, finding that Applicant’s specimen did not show use of the proposed mark on or in connection with any of the goods specified in Class 11. Kohler then submitted a new specimen for review, however, the examining attorney once again refused to register the mark on the grounds that it failed to function as a trademark under Sections 1, 2, and 45 of the Trademark Act, 15 U.S.C. §§ 1051, 1052, and 1127, “because [POWERZONE] clearly identifies one of the three spray settings for the shower heads. Consumers encountering the applied-for mark used in this manner would not perceive it as an indicator of the source of the goods.” The plumbing fixture company appealed.

Source identifier. The Board analyzed whether the Applicant’s specimens supported the use of POWERZONE mark for Applicant’s goods. The court compared this case with In re Bose, 546 F.2d 893, 192 USPQ 213, 216 (CCPA 1976), which was a case involving an application to register the mark SYNCOM for “loudspeaker systems for high-fidelity music reproduction.” The Board noted that in Bose, the specimens clearly showed SYNCOM being used for a “speaker testing computer,” and INTERAUDIO being used for “speakers,” “loudspeakers,” and “speaker cabinets.” The examining attorney argued that the specimens “fail to demonstrate the use of SYNCOM to indicate the origin of the goods in the application … instead, SYNCOM indicates origin, only with respect to a speaker-testing computer,” and a reviewing court agreed. Likewise, the Board pointed out that the specimens expressly identify POWERZONE as a spray setting; thus, consumers are likely to perceive POWERZONE as a source identifier for “spray settings,” not “Shower heads.” Additionally, based on Applicant’s original specimen, the Board concluded that consumers would use the AQUIFER mark (the name of the line of the shower head as advertised on various retail websites) to ask for Applicant’s “Shower heads” instead.

The Applicant asserted that the POWERZONE mark is used as a source identifier and is distinctive. The Applicant asserted that POWERZONE “stands out – it is bold, next to a ‘TM’ symbol, and stands alone rather than being buried in text.” However, the Board pointed out that the shower heads advertise three different spray settings and the Applicant was only seeking to trademark one. Additionally, the Board commented that while use of the “TM” designation with POWERZONE “lends a degree of visual prominence” to the proposed mark, such use of the designation is not dispositive: here, the specimens of record show POWERZONE, as well as the additional two settings of the three settings identified, being used only for “spray settings.”

The fixture manufacturer next presented evidence of other third party registrations and specimens for a variety of plumbing products, including faucets, shower heads, valves, and drains which demonstrate, “consumers of shower heads are conditioned to look for and see, as source identifiers, distinctive terms used for features of the shower heads... .” The Board contrasted the third-party marks, finding, “nearly all of the third-party specimen evidence shows use of a registered mark for goods that are encompassed by the identification of goods on the corresponding registration certificate.”

The Board affirmed the refusal to register, finding that “consumers and prospective consumers will perceive POWERZONE as identifying a ‘shower setting,’ not ‘Shower heads.’”

The Case is Serial No. 88796957.

Attorneys: Bradley L. Cohn (Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP) for Kohler Co. Ronald McMorrow for the USPTO.

Companies: Kohler Co.

Cases: Trademark USPTO