98641507•Epp Well Solutions
Testo completo
This Opinion is Not a Precedent of the TTAB Mailed: October 23, 2026 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board ———— In re Epp Well Solutions ———— Serial No. 98641507 ———— Philip R.M. Hunt, Rylander & Associates PC for Epp Well Solutions. April E. Reeves, Trademark Examining Attorney, Law Office 124, Lydia Belzer, Managing Attorney. ———— Before English, Thurmon and Lavache, Administrative Trademark Judges. Opinion by English, Administrative Trademark Judge: Applicant, Epp Well Solutions, seeks registration on the Supplemental Register of the proposed standard-character mark WATER BOOSTER for the following goods in International Class 7: Well water pumping and supply systems comprising [sic] primarily of electrical water pumps for household plumbing systems, water tanks of plastic for household purposes, electronic controllers configured for controlling water pumps, water flow detectors, pressure sensors, sold as a unit.1 1 Application Serial No. 98641507 was filed on July 10, 2024 under Trademark Act Section 1(a), 15 U.S.C. § 1051(a), alleging February 16, 2024 as the date of first use and first use of the mark in commerce.
Serial No. 98641507 -2- Applicant originally sought registration on the Principal Register. The Examining Attorney issued a nonfinal Office Action refusing registration of the proposed mark under Trademark Act Section 2(e)(1), 15 U.S.C. § 1052(e)(1), on the ground that it is merely descriptive of Applicant’s identified goods.2 In response, Applicant amended the application to seek registration on the Supplemental Register.3 The Examining Attorney then issued a new nonfinal Office Action, refusing registration on the Supplemental Register under Trademark Act Sections 23(c) and 45, 15 U.S.C. §§ 1091(c) and 1127, on the ground that the proposed mark is generic as applied to the identified goods. Once the new refusal was made final, Applicant appealed and filed a request for reconsideration, which the Examining Attorney denied. The appeal proceeded and has been briefed.4 We affirm the refusal. I. Evidentiary Objections During prosecution, Applicant introduced search results for the term “water booster” from the Google search engine.5 The Examining Attorney promptly objected to this evidence on the ground that the printout lacks a URL address and advised Applicant that to properly introduce Internet evidence, the URL and date of access 2 January 12, 2025 Office Action. 3 April 14, 2025 Office Action Response, TSDR 3. The TTABVUE and Trademark Status and Document Retrieval (TSDR) citations in this opinion refer respectively to entries in the Board’s electronic docket and to the downloadable PDF version of the electronic application file. For TTABVUE citations, the number preceding the TTABVUE designation is the docket entry number and any numbers following indicate the relevant page numbers within the docket entry. 4 Applicant’s Appeal Brief is at 6 TTABVUE, the Examining Attorney’s Brief is at 8 TTABVUE and Applicant’s Reply Brief is at 9 TTABVUE. 5 September 4, 2025 Office Action Response, TSDR 4.
Serial No. 98641507 -3- or download must be provided.6 In re I-Coat Co., No. 86802467, 2018 TTAB LEXIS 171, at *7-9 (URL and date of access or download required to make Internet evidence of record); TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 1208.03 (2026); TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) § 710.01(b) (May 2026). Applicant did not cure the deficiency, and the Examining Attorney maintained the objection in her brief. The objection is thus sustained; we have not considered the Google search results.7 II. Analysis Applicable Law “Generic terms are common names that the relevant purchasing public understands primarily as describing the genus of goods or services being sold.” In re 6 November 6, 2025 Final Office Action, TSDR 5. The printout also is undated. The Examining Attorney did not point out the missing date to Applicant but her instructions on how to properly introduce Internet evidence included the requirement to provide the date the material was downloaded or accessed. Id. 7 The Examining Attorney also objects to “Applicant’s reliance on a prior application [for WATER BOOSTER] in Applicant’s Appeal Brief” because the file of the application is not of record nor does the Board take judicial notice of the contents of application files. 8 TTABVUE 3. Applicant does not assert any arguments based on its purported prior-filed application but states that the USPTO issued an Office action “which made a refusal for being merely descriptive and a refusal for the specimen not being acceptable” and “recommended amending [to] the supplemental register. … The Applicant decided to abandon the Application.” 6 TTABVUE 3. We give this statement no consideration because it is not supported by the record, and as the Examining Attorney points out, we do not take judicial notice of USPTO records. UMG Recordings, Inc. v. O’Rourke, No. 91178937, 2009 TTAB LEXIS 544, at *12 (“[I]t is well settled that the Board does not take judicial notice of USPTO records.”). In any event, Applicant’s statement, even if true, would have no bearing on our decision, which is based on the specific record before us. In re Nett Designs, Inc., 236 F.3d 1339, 1342 (Fed. Cir. 2001) (“The Board must decide each case on its own merits.”).
Serial No. 98641507 -4- Dial-A-Mattress Operating Corp., 240 F.3d 1341, 1344 (Fed. Cir. 2011) (citations omitted). They are “by definition incapable of indicating source, are the antithesis of trademarks, and can never attain trademark status.” In re Merrill Lynch, Pierce, Fenner, & Smith, Inc., 828 F.2d 1567, 1569 (Fed. Cir. 1987). Accordingly, generic terms are ineligible for registration on either the Principal Register or Supplemental Register. USPTO v. Booking.com B.V., 591 U.S. 549, 551 (2020) (“A generic name— the name of a class of products or services—is ineligible for federal trademark registration.”); In re Jasmin Larian, LLC, No. 87522459, 2022 TTAB LEXIS 99, at *44 (“Our finding that the proposed mark is generic is an absolute bar to its registration on either the Principal or Supplemental Register.”). Whether a proposed mark is generic rests on the primary significance of the term to the relevant public. In re Am. Fertility Soc’y, 188 F.3d 1341, 1347 (Fed. Cir. 1999); Magic Wand Inc. v. RDB Inc., 940 F.2d 638, 640 (Fed. Cir. 1991). Making this determination “involves a two-step inquiry: First, what is the genus of goods or services at issue? Second, is the term sought to be registered . . . understood by the relevant public primarily to refer to that genus of goods or services?” H. Marvin Ginn Corp. v. Int’l Ass’n of Fire Chiefs, Inc., 782 F.2d 987, 990 (Fed. Cir. 1986). Importantly, the evidence need not show that the term at issue refers to the entire genus of goods; a term is generic if it refers to a subcategory or key aspect of the claimed genus of goods. In re Cordua Rests., Inc., 823 F.3d 594, 604-05 (Fed. Cir. 2016) (“[A] term is generic if the relevant public understands the term to refer to part of the claimed genus of goods or services, even if the public does not understand the
Serial No. 98641507 -5- term to refer to the broad genus as a whole.”); In re Northland Aluminum Prods., Inc., 777 F.2d 1556 (Fed. Cir. 1985) (BUNDT generic for ring cake mixes, i.e., “bundt cakes” a subcategory of cakes). In Royal Crown Co. v. Coca-Cola Co., 892 F.3d 1358 (Fed. Cir. 2018), the Federal Circuit emphasized that a term may be generic even if it does not refer to the entire genus: We … explained that “a term is generic if the relevant public understands the term to refer to part of the claimed genus of goods or services, even if the public does not understand the term to refer to the broad genus as a whole.” In In re Cordua, we found that the term “churrasco” was generic, even for use in connection with a broad class of restaurant services, because the key public would understand the term to be referring to a specialty dish—a sub-aspect of restaurant services. We made clear that “[t]here is no logical reason to treat differently a term that is generic of a category or class of products where some but not all of the goods identified in an application fall within that category.” We pointed out, for instance, that the term “pizzeria” would be generic for restaurant services, even though the public does not understand the term to refer to the broad class of restaurants as a whole; the public need only understand that the term refers to “a particular sub-group or type of restaurant rather than to all restaurants.” So too here, if the public understands ZERO when used in combination with a designated beverage name to refer to a sub-group or type of beverage that carries specific characteristics, that would be enough to render the term generic. … On remand, accordingly, the Board must examine whether the term ZERO, when appended to a beverage mark, refers to a key aspect of the genus. ZERO need not be equated by the general public with the entire broad genus TCCC claims in order for the term to be generic. The Board therefore must consider whether ZERO is generic because it refers to a key aspect of at least a sub-group or type of the claimed beverage goods. Id. at 1367-68 (internal citations omitted) (italics emphasis in original changed to bold).
Serial No. 98641507 -6- The Record 1. Applicant’s Specimen Below are cropped excerpts from Applicant’s specimen of use.8 8 July 10, 2024 Specimen.
Serial No. 98641507 -7- 2. The Examining Attorney’s Evidence The Examining Attorney introduced a printout from MERRIAM-WEBSTER online dictionary defining “booster” as “an auxiliary device for increasing force, power, pressure, or effectiveness.”9 She also introduced printouts from sixteen third-party websites describing “water booster” as a type of water pump and supply system that boosts water pressure, as shown in the excerpts below.10 9 January 12, 2025 Office Action, TSDR 15. The record also includes dictionary definitions for “water.” Id. at 4-14. 10 The Examining Attorney introduced one additional website from LEO, an entity identified as located in Zhejiang, China, providing a “comprehensive guide” to “choosing the perfect home water booster pump.” January 12, 2025 Office Action, TSDR 23-37. Although LEO is identified as an entity outside the United States, its website is in English. We have considered this evidence to the extent U.S. consumers might consult this website guide to learn about water booster pumps. In re Bayer AG, 488 F.3d 960, 969 (“The probative value, if any, of foreign information sources must be evaluated on a case-by-case basis.”); cf. In re Odd Sox LLC, No. 86297488, 2019 TTAB LEXIS 346, at *15-16 (finding foreign website evidence relevant because potential consumers would likely encounter those English language websites when searching for companies offering services similar to applicant). Even if we had not considered this website evidence, we would reach the same decision affirming the refusal.
Serial No. 98641507 -8- • Towle Whitney explaining that “water booster pumps” boost low water pressure; identifying “signs you need a water booster pump”; and promoting an article about “how to know which water booster pump is right for you.” This website also states: There are a number of applications for water booster pumps, ranging from large buildings like hotels to smaller residential homes. While the application can vary, the booster pump’s purpose remains constant – to increase the pressure of water to all of the plumbing fixtures in the building.11 • Fresh Water Systems blog replete with references to “water booster pumps” including asking, “What is a Water Booster Pump and How Does it Work?” and answering, “A water booster pump increases water pressure and volume to your faucet or shower head.”12 Specific to well water, the blog explains: A single water booster pump can boost water pressure throughout an entire home. Sometimes, well water users want to increase flow from a low-recovery well to their home because it does not produce enough water to keep up with household demand. A water pressure booster pulls water from the well storage tank to pressurize the water in the house. • Watson Well servicing well pumps and providing a blog identifying numerous “Benefits of water booster pumps for your home,” including improved and consistent water pressure and energy efficiency.13 • Ralph’s Pump and Well advertising well-related services and explaining that a “water booster pump & tank system” is a solution for “low water pressure”; A water booster pump provides pressure to move water from a well or throughout a whole house or commercial facility.”14 • Pump Supermarket offering a SPERONI “water booster pump with pressure tank … particularly suitable to increase pressure from a water system, to supply water from wells and in domestic high pressure groups.”15 11 January 12, 2025 Office Action, TSDR 39-42. 12 Id. at 43-51. 13 Id. at 53-56. 14 June 4, 2025 Office Action, TSDR 7-8. 15 Id. at 10-12.
Serial No. 98641507 -9- • Raco Manufacturing & Engineering Co. blog post titled “Understanding the Benefits of a Water Booster Pump System”.16 • Callaghan Pump and Controls Inc. providing “A Simple Guide to Choose Your Domestic Water Booster System”: [W]e are here to talk about water pressure booster pumps. By reading this blog post, you will be able to determine the accurate size, pipes, valves, and other aspects necessary for your water booster pump system. … At Callaghan Pump, our pressure- boosting pump system can be integrated with your building, be it a commercial or industrial one. … We operate in Connecticut, and our Domestic Water Booster Pump System may also be configured as part of a custom prefabricated housed system….17 • RainHarvest Systems LLC offering a “DAB E.Sybox Mini Water Booster System”18 for “the water supply of a single dwelling [that] guarantees the comfort of constant pressure.” • RP Pumps offering a SPERONI “water booster pump” and DAB “water booster system[s]”.19 One identified application of the DAB water booster is “pumping water from shallow water wells[.]” This retailer explains that “Water booster pumps are a critical component in modern plumbing and water management systems. As a subcategory of water pump, their main role is to increase water pressure and flow in systems where low pressure hampers performance.”20 • Pump Stop Online offering Best Control Well System a “water booster pump” for “for water pumps that pull water out of shallow wells,” among other applications.21 • Express Water offering “the Express Water Booster Pump, maximizing the water pressure efficiency of your filter water.”22 16 Id. at 17-29. 17 November 6, 2025 Final Office Action, TSDR 7-9. 18 Id. at 10-12. 19 Id. at 13-16. 20 Id. at 17-29. 21 Id. at 31-38. 22 Id. at 39, 45.
Serial No. 98641507 -10- • Gallup Well Services Inc.: “Well Water Storage Tank Setup in Maryland. In need of a well water booster pump as well? Our booster pumps are capable of providing 50-80 psi of constant pressure ....”23 • TrueValue offering a SIMER “water booster system” to “[b]oost your incoming [water] pressure.”24 • Northeastern Supply Co. offering a DAB PUMPS “water booster system”.25 • Thrush Co. Inc. offering THRUSH “packaged water booster systems” for “a constant supply of pressurized water[.]”26 • RC Worst Co. offering an A.Y. McDonald “water booster pump system” for “boosted and constant water pressure from water storage systems” and advertising “water well pump systems,” among other systems.27 3. Applicant’s Evidence Applicant introduced Bing search engine results for the term “water booster.”28 Below is an excerpt from that portion of the search results on which Applicant relies. 23 Id. at 46-49. 24 Id. at 50-51. 25 Id. at 53-55. 26 Id. at 57-59. 27 Id. at 61-69. 28 January 7, 2026 Request for Reconsideration, TSDR 4 (the URL and date of access are shown on the printout).
Serial No. 98641507 -11-
Serial No. 98641507 -12- Analysis 1. Genus and Relevant Public As the Federal Circuit has instructed, with respect to the first prong of the genericness inquiry, we focus on the identification in the involved application to determine the genus of goods. In re Cordua, 823 F.3d at 602; Magic Wand, 940 F.2d at 640 (a proper genericness inquiry focuses on the identification set forth in the application or certificate of registration). Here, the identification of goods in the application appropriately defines the genus as “well water pumping and supply systems.” As to the second prong of analysis, the relevant public is actual or potential purchasers of well water pumping and supply systems. Magic Wand, 940 F.2d at 640 (“[T]he relevant public [is] limited to actual or potential purchasers of the goods or services.”). 2. Analysis The inquiry here is whether consumers of the genus at issue here—“well water pumping and supply systems”—would primarily understand WATER BOOSTER as identifying the genus or a subcategory or key aspect thereof. The numerous third- party uses of WATER BOOSTER above demonstrate that competitors and others in the field use “water booster” to identify a subcategory or key aspect of “water pumping and supply systems,” including well water pumps that boost water pressure. Booking.com, 591 U.S. at 561 n.6 (“Evidence informing [the genericness] inquiry can include not only consumer surveys, but also dictionaries, usage by consumers and competitors, and any other source of evidence bearing on how consumers perceive a
Serial No. 98641507 -13- term’s meaning.”); Sheetz of Del., Inc. v. Doctor’s Assocs., No. 91192657, 2013 TTAB LEXIS 468, at *31 (“[E]xamples of third-party use of the term ‘footlong’ (or ‘foot-long’) demonstrates use of the term to denote a type of sandwich” and “is strong evidence that purchasers will not be able to differentiate between competing sources by viewing the term ‘Footlong.’ Such use by competitors is evidence of genericness.”). Consistent with the third-party use, Applicant uses the wording WATER BOOSTER in its specimen to identify a type of water pump, namely, one that boosts the water pressure of wells and city water supplies. In re Consumer Prot. Firm PPL, No. 87445801, 2021 TTAB LEXIS 67, at *11 (“In assessing the primary significance of Applicant’s Proposed Marks to the relevant public, we also may consider Applicant’s use thereof.”); Sheetz of Del., 2013 TTAB LEXIS 468, at *29-30 (finding applicant’s own advertising “demonstrate[s] that applicant is not using the term ‘Footlong’ in a manner likely to be recognized as a trademark”); In re Central Sprinkler Co., No. 74505190, 1998 TTAB LEXIS 386, at *11-13 (affirming genericness refusal; “we cannot overlook how the relevant public will encounter the matter sought to be registered” as shown in applicant’s specimen and product literature). Applicant’s display of the proposed mark in initial capital letters and occasionally with a ™ designation does not change that the proposed mark is used in the text of Applicant’s advertising as a generic term for a part of its goods. We find that consumers encountering the industry uses, summarized above, and Applicant’s own use will understand WATER BOOSTER as generic for a subpart or
Serial No. 98641507 -14- key aspect of “well water pumping and supply systems,” namely a well water pump that boosts water pressure. 29 Applicant argues that “the Examining Attorney has presented evidence of the use of the terms ‘Water Booster Pump’ and ‘Water Booster Pump System’ by the relevant public to refer to the genus of goods in question” but “has not presented any evidence that the relevant public uses just the term ‘Water Booster’ without more to refer to the genus of goods in question[.]”30 That is, Applicant argues that because the proposed mark does not include the term “pump” or “system,” generic terms for the broader genus of goods at issue, WATER BOOSTER cannot be generic for “well water pumping and supply systems.” This argument is wholly without merit. As noted above, it is well-established that a term is generic if it refers to a subcategory or key aspect of the genus of goods. In re Cordua, 823 F.3d at 605. This legal principle would be obliterated if we were to accept Applicant’s argument that a proposed mark cannot be generic if it does not include the generic term for the broader genus. Examples of a term for a genus subcategory or key aspect found to be generic include: (1) CHURRASCOS generic for the broad genus of restaurant services because such services encompass restaurants with a 29 Even if we were to identify the genus as “well water pumping and supply systems comprising [sic] primarily of electrical water pumps for household plumbing systems, water tanks of plastic for household purposes, electronic controllers configured for controlling water pumps, water flow detectors, pressure sensors, sold as a unit,” we would reach the same decision affirming the refusal because the evidence demonstrates that WATER BOOSTER refers to a key aspect of the goods, namely, an electrical water pump for household plumbing systems that boosts water pressure of well water pumping and supply systems. 30 Appeal Brief, 6 TTABVUE 12.
Serial No. 98641507 -15- central focus on churrascos, In re Cordua, 823 F.2d at 604-05; (2) BUNDT generic for “ring cake mix” because BUNDT is a type of ring cake, In re Northland Aluminum, 777 F.2d at 1561; and (3) FOOTLONG generic for “sandwiches” because it “identifies a category of sandwiches 12 inches long,” Sheetz of Del., 2013 TTAB LEXIS 468, at *62-63. Each of the proposed marks was found generic despite the omission of the broader genus of goods or service, i.e. “restaurant,” “cake” and “sandwich.” Next, Applicant points to the Bing search results stating that “A water booster can refer to two types of devices: Water Heater Booster … [or] Water Booster Pump.”31 Applicant argues that because “‘water booster … refers to two distinct types of devices: (1) a water heater booster, and (2) a water booster pump” its “primary significance is ambiguous, and thus, it cannot be generic.32 More specifically, Applicant argues that “if the relevant public understands ‘water booster’ to refer to two different and unrelated categories of devices — water heater boosters and water booster pumps — then the term cannot ‘primarily’ refer to any one genus.”33 The Examining Attorney points out that the source is not identified for the above Bing search results stating that there are two types of “water boosters”: (1) a water heater booster; and (2) a water booster pump. Because the source has not been identified, we cannot ascertain the credibility of this information, lessening its probative value. But even giving full credit to this evidence, it does not help Applicant. 31 Appeal Brief, 6 TTABVUE 13. 32 Reply Brief, 9 TTABVUE 5. 33 Id. at 6.
Serial No. 98641507 -16- There is no requirement that a term identify “any one genus.” Indeed, it is common for English-language words to have more than one meaning. For example, the word “baseball” refers to a sport, a sports player and sports equipment. The fact that “baseball” has three different meanings does not make the term any less generic for each of these things. Last, we note that in its reply brief, Applicant asserts two arguments that it did not make in its appeal brief or during prosecution. Applicant forfeited or waived these arguments by failing to raise them in its appeal brief when the Examining Attorney would have had the opportunity to respond.34 U.S. v. Ford Motor Co., 463 F.3d 1267, 1276 (Fed. Cir. 2006) (“Arguments raised for the first time in a reply brief are not properly before this court.”); Cross Med. Prods. v. Medronic Sofamor Danek, Inc., 424 F.3d 1293, 1320 n.3 (Fed. Cir. 2005) (declining to consider “new arguments raised for the first time in [a] reply brief”); Rocket Trademarks Pty. Ltd. v. Phard S.p.A., No. 91172486, 2011 TTAB LEXIS 39, at *37 (plaintiff’s reply brief “must be confined to rebutting the defendant’s main brief”); cf. In re Princeton Equity Grp. LLC, No. 97397212, 2025 TTAB LEXIS 242, at *6-9 (“Parties whose briefs purport to 34 Specifically, Applicant argues that the evidence (1) is “almost exclusively from industry sources—competitor websites and product listings—rather than from consumer-facing evidence of how the purchasing public understands the term,” Reply Brief, 9 TTABVUE 6; and (2) “predominantly concerns a broader genus of household water pressure boosters, not the specific integrated well water pumping and supply systems identified in the application.” Id. at 11. Even if not waived, these arguments are unpersuasive. The third-party uses are directed precisely to the relevant public and show that water boosters may be used to boost water pressure of any water supply system, including well water. Indeed, Applicant describes its goods as “adaptable to both well and city water supplies. It is perfect for those situated at the end of the water supply line, or for those using a shared well that requires increased output or pressure.” July 10, 2024 Specimen.
Serial No. 98641507 -17- incorporate by reference arguments made during prosecution will be held to have failed thereby to present whatever arguments the incorporation statement purports to cover to the Board and will be deemed to have forfeited them.”). In sum, the industry use and Applicant’s own use, discussed above, leaves us with no doubt that consumers of well water pumping and supply systems encountering the proposed mark WATER BOOSTER would primarily understand it to refer to a subcategory or key aspect of well water pumping and supply systems, namely, a pump that boosts well water pressure.35 III. Conclusion Decision: The refusal to register the proposed mark WATER BOOSTER under Sections 23(c) and 45 of the Trademark Act is affirmed. 35 Based on the Bing search results, it appears that the genus for a “water heater booster” would be a water heater, which is different from a well water pump or system.
OCR transcription for search; preserved printed pages are authoritative
This Opinion is Not a Precedent of the TTAB Mailed: October 23, 2026 UNITED STATES PATENT AND TRADEMARK OFFICE Trademark Trial and Appeal Board In re Epp Well Solutions Serial No. 98641507 Philip R.M. Hunt, Rylander & Associates PC for Epp Well Solutions. April E. Reeves, Trademark Examining Attorney, Law Office 124, Lydia Belzer, Managing Attorney. Before English, Thurmon and Lavache, Administrative Trademark Judges. Opinion by English, Administrative Trademark Judge: Applicant, Epp Well Solutions, seeks registration on the Supplemental Register of the proposed standard-character mark WATER BOOSTER for the following goods in International Class 7: Well water pumping and supply systems comprising [sic] primarily of electrical water pumps for household plumbing systems, water tanks of plastic for household purposes, electronic controllers configured for controlling water pumps, water flow detectors, pressure sensors, sold as a unit.! 1 Application Serial No. 98641507 was filed on July 10, 2024 under Trademark Act Section 1(a), 15 U.S.C. § 1051(a), alleging February 16, 2024 as the date of first use and first use of the mark in commerce. Serial No. 98641507 -2- Applicant originally sought registration on the Principal Register. The Examining Attorney issued a nonfinal Office Action refusing registration of the proposed mark under Trademark Act Section 2(e)(1), 15 U.S.C. § 1052(e)(1), on the ground that it is merely descriptive of Applicant’s identified goods.2 In response, Applicant amended the application to seek registration on the Supplemental Register.3 The Examining Attorney then issued a new nonfinal Office Action, refusing registration on the Supplemental Register under Trademark Act Sections 23(c) and 45, 15 U.S.C. §§ 1091(c) and 1127, on the ground that the proposed mark is generic as applied to the identified goods. Once the new refusal was made final, Applicant appealed and filed a request for reconsideration, which the Examining Attorney denied. The appeal proceeded and has been briefed.4 We affirm the refusal. I. Evidentiary Objections During prosecution, Applicant introduced search results for the term “water booster” from the Google search engine.5 The Examining Attorney promptly objected to this evidence on the ground that the printout lacks a URL address and advised Applicant that to properly introduce Internet evidence, the URL and date of access 2 January 12, 2025 Office Action. 3 April 14, 2025 Office Action Response, TSDR 3. The TTABVUE and Trademark Status and Document Retrieval (TSDR) citations in this opinion refer respectively to entries in the Board’s electronic docket and to the downloadable PDF version of the electronic application file. For TTABVUE citations, the number preceding the TTABVUE designation is the docket entry number and any numbers following indicate the relevant page numbers within the docket entry. 4 Applicant’s Appeal Brief is at 6 TTABVUE, the Examining Attorney’s Brief is at 8 TTABVUE and Applicant’s Reply Brief is at 9 TTABVUE. 5 September 4, 2025 Office Action Response, TSDR 4. Serial No. 98641507 -3- or download must be provided.6 In re I-Coat Co., No. 86802467, 2018 TTAB LEXIS 171, at *7-9 (URL and date of access or download required to make Internet evidence of record); TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 1208.03 (2026); TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) § 710.01(b) (May 2026). Applicant did not cure the deficiency, and the Examining Attorney maintained the objection in her brief. The objection is thus sustained; we have not considered the Google search results.7 II. Analysis Applicable Law “Generic terms are common names that the relevant purchasing public understands primarily as describing the genus of goods or services being sold.” In re 6 November 6, 2025 Final Office Action, TSDR 5. The printout also is undated. The Examining Attorney did not point out the missing date to Applicant but her instructions on how to properly introduce Internet evidence included the requirement to provide the date the material was downloaded or accessed. Id. 7 The Examining Attorney also objects to “Applicant’s reliance on a prior application [for WATER BOOSTER] in Applicant’s Appeal Brief” because the file of the application is not of record nor does the Board take judicial notice of the contents of application files. 8 TTABVUE 3. Applicant does not assert any arguments based on its purported prior-filed application but states that the USPTO issued an Office action “which made a refusal for being merely descriptive and a refusal for the specimen not being acceptable” and “recommended amending [to] the supplemental register. … The Applicant decided to abandon the Application.” 6 TTABVUE 3. We give this statement no consideration because it is not supported by the record, and as the Examining Attorney points out, we do not take judicial notice of USPTO records. UMG Recordings, Inc. v. O’Rourke, No. 91178937, 2009 TTAB LEXIS 544, at *12 (“[I]t is well settled that the Board does not take judicial notice of USPTO records.”). In any event, Applicant’s statement, even if true, would have no bearing on our decision, which is based on the specific record before us. In re Nett Designs, Inc., 236 F.3d 1339, 1342 (Fed. Cir. 2001) (“The Board must decide each case on its own merits.”). Serial No. 98641507 -4- Dial-A-Mattress Operating Corp., 240 F.3d 1341, 1344 (Fed. Cir. 2011) (citations omitted). They are “by definition incapable of indicating source, are the antithesis of trademarks, and can never attain trademark status.” In re Merrill Lynch, Pierce, Fenner, & Smith, Inc., 828 F.2d 1567, 1569 (Fed. Cir. 1987). Accordingly, generic terms are ineligible for registration on either the Principal Register or Supplemental Register. USPTO v. Booking.com B.V., 591 U.S. 549, 551 (2020) (“A generic name— the name of a class of products or services—is ineligible for federal trademark registration.”); In re Jasmin Larian, LLC, No. 87522459, 2022 TTAB LEXIS 99, at *44 (“Our finding that the proposed mark is generic is an absolute bar to its registration on either the Principal or Supplemental Register.”). Whether a proposed mark is generic rests on the primary significance of the term to the relevant public. In re Am. Fertility Soc’y, 188 F.3d 1341, 1347 (Fed. Cir. 1999); Magic Wand Inc. v. RDB Inc., 940 F.2d 638, 640 (Fed. Cir. 1991). Making this determination “involves a two-step inquiry: First, what is the genus of goods or services at issue? Second, is the term sought to be registered . . . understood by the relevant public primarily to refer to that genus of goods or services?” H. Marvin Ginn Corp. v. Int’l Ass’n of Fire Chiefs, Inc., 782 F.2d 987, 990 (Fed. Cir. 1986). Importantly, the evidence need not show that the term at issue refers to the entire genus of goods; a term is generic if it refers to a subcategory or key aspect of the claimed genus of goods. In re Cordua Rests., Inc., 823 F.3d 594, 604-05 (Fed. Cir. 2016) (“[A] term is generic if the relevant public understands the term to refer to part of the claimed genus of goods or services, even if the public does not understand the Serial No. 98641507 -5- term to refer to the broad genus as a whole.”); In re Northland Aluminum Prods., Inc., 777 F.2d 1556 (Fed. Cir. 1985) (BUNDT generic for ring cake mixes, i.e., “bundt cakes” a subcategory of cakes). In Royal Crown Co. v. Coca-Cola Co., 892 F.3d 1358 (Fed. Cir. 2018), the Federal Circuit emphasized that a term may be generic even if it does not refer to the entire genus: We … explained that “a term is generic if the relevant public understands the term to refer to part of the claimed genus of goods or services, even if the public does not understand the term to refer to the broad genus as a whole.” In In re Cordua, we found that the term “churrasco” was generic, even for use in connection with a broad class of restaurant services, because the key public would understand the term to be referring to a specialty dish—a sub-aspect of restaurant services. We made clear that “[t]here is no logical reason to treat differently a term that is generic of a category or class of products where some but not all of the goods identified in an application fall within that category.” We pointed out, for instance, that the term “pizzeria” would be generic for restaurant services, even though the public does not understand the term to refer to the broad class of restaurants as a whole; the public need only understand that the term refers to “a particular sub-group or type of restaurant rather than to all restaurants.” So too here, if the public understands ZERO when used in combination with a designated beverage name to refer to a sub-group or type of beverage that carries specific characteristics, that would be enough to render the term generic. … On remand, accordingly, the Board must examine whether the term ZERO, when appended to a beverage mark, refers to a key aspect of the genus. ZERO need not be equated by the general public with the entire broad genus TCCC claims in order for the term to be generic. The Board therefore must consider whether ZERO is generic because it refers to a key aspect of at least a sub-group or type of the claimed beverage goods. Id. at 1367-68 (internal citations omitted) (italics emphasis in original changed to bold). Serial No. 98641507 -6- The Record 1. Applicant’s Specimen Below are cropped excerpts from Applicant’s specimen of use.8 8 July 10, 2024 Specimen. Serial No. 98641507 -7- 2. The Examining Attorney’s Evidence The Examining Attorney introduced a printout from MERRIAM-WEBSTER online dictionary defining “booster” as “an auxiliary device for increasing force, power, pressure, or effectiveness.”9 She also introduced printouts from sixteen third-party websites describing “water booster” as a type of water pump and supply system that boosts water pressure, as shown in the excerpts below.10 9 January 12, 2025 Office Action, TSDR 15. The record also includes dictionary definitions for “water.” Id. at 4-14. 10 The Examining Attorney introduced one additional website from LEO, an entity identified as located in Zhejiang, China, providing a “comprehensive guide” to “choosing the perfect home water booster pump.” January 12, 2025 Office Action, TSDR 23-37. Although LEO is identified as an entity outside the United States, its website is in English. We have considered this evidence to the extent U.S. consumers might consult this website guide to learn about water booster pumps. In re Bayer AG, 488 F.3d 960, 969 (“The probative value, if any, of foreign information sources must be evaluated on a case-by-case basis.”); cf. In re Odd Sox LLC, No. 86297488, 2019 TTAB LEXIS 346, at *15-16 (finding foreign website evidence relevant because potential consumers would likely encounter those English language websites when searching for companies offering services similar to applicant). Even if we had not considered this website evidence, we would reach the same decision affirming the refusal. Serial No. 98641507 -8- • Towle Whitney explaining that “water booster pumps” boost low water pressure; identifying “signs you need a water booster pump”; and promoting an article about “how to know which water booster pump is right for you.” This website also states: There are a number of applications for water booster pumps, ranging from large buildings like hotels to smaller residential homes. While the application can vary, the booster pump’s purpose remains constant – to increase the pressure of water to all of the plumbing fixtures in the building.11 • Fresh Water Systems blog replete with references to “water booster pumps” including asking, “What is a Water Booster Pump and How Does it Work?” and answering, “A water booster pump increases water pressure and volume to your faucet or shower head.”12 Specific to well water, the blog explains: A single water booster pump can boost water pressure throughout an entire home. Sometimes, well water users want to increase flow from a low-recovery well to their home because it does not produce enough water to keep up with household demand. A water pressure booster pulls water from the well storage tank to pressurize the water in the house. • Watson Well servicing well pumps and providing a blog identifying numerous “Benefits of water booster pumps for your home,” including improved and consistent water pressure and energy efficiency.13 • Ralph’s Pump and Well advertising well-related services and explaining that a “water booster pump & tank system” is a solution for “low water pressure”; A water booster pump provides pressure to move water from a well or throughout a whole house or commercial facility.”14 • Pump Supermarket offering a SPERONI “water booster pump with pressure tank … particularly suitable to increase pressure from a water system, to supply water from wells and in domestic high pressure groups.”15 11 January 12, 2025 Office Action, TSDR 39-42. 12 Id. at 43-51. 13 Id. at 53-56. 14 June 4, 2025 Office Action, TSDR 7-8. 15 Id. at 10-12. Serial No. 98641507 -9- • Raco Manufacturing & Engineering Co. blog post titled “Understanding the Benefits of a Water Booster Pump System”.16 • Callaghan Pump and Controls Inc. providing “A Simple Guide to Choose Your Domestic Water Booster System”: [W]e are here to talk about water pressure booster pumps. By reading this blog post, you will be able to determine the accurate size, pipes, valves, and other aspects necessary for your water booster pump system. … At Callaghan Pump, our pressure- boosting pump system can be integrated with your building, be it a commercial or industrial one. … We operate in Connecticut, and our Domestic Water Booster Pump System may also be configured as part of a custom prefabricated housed system….17 • RainHarvest Systems LLC offering a “DAB E.Sybox Mini Water Booster System”18 for “the water supply of a single dwelling [that] guarantees the comfort of constant pressure.” • RP Pumps offering a SPERONI “water booster pump” and DAB “water booster system[s]”.19 One identified application of the DAB water booster is “pumping water from shallow water wells[.]” This retailer explains that “Water booster pumps are a critical component in modern plumbing and water management systems. As a subcategory of water pump, their main role is to increase water pressure and flow in systems where low pressure hampers performance.”20 • Pump Stop Online offering Best Control Well System a “water booster pump” for “for water pumps that pull water out of shallow wells,” among other applications.21 • Express Water offering “the Express Water Booster Pump, maximizing the water pressure efficiency of your filter water.”22 16 Id. at 17-29. 17 November 6, 2025 Final Office Action, TSDR 7-9. 18 Id. at 10-12. 19 Id. at 13-16. 20 Id. at 17-29. 21 Id. at 31-38. 22 Id. at 39, 45. Serial No. 98641507 -10- • Gallup Well Services Inc.: “Well Water Storage Tank Setup in Maryland. In need of a well water booster pump as well? Our booster pumps are capable of providing 50-80 psi of constant pressure ....”23 • TrueValue offering a SIMER “water booster system” to “[b]oost your incoming [water] pressure.”24 • Northeastern Supply Co. offering a DAB PUMPS “water booster system”.25 • Thrush Co. Inc. offering THRUSH “packaged water booster systems” for “a constant supply of pressurized water[.]”26 • RC Worst Co. offering an A.Y. McDonald “water booster pump system” for “boosted and constant water pressure from water storage systems” and advertising “water well pump systems,” among other systems.27 3. Applicant’s Evidence Applicant introduced Bing search engine results for the term “water booster.”28 Below is an excerpt from that portion of the search results on which Applicant relies. 23 Id. at 46-49. 24 Id. at 50-51. 25 Id. at 53-55. 26 Id. at 57-59. 27 Id. at 61-69. 28 January 7, 2026 Request for Reconsideration, TSDR 4 (the URL and date of access are shown on the printout). A water booster can refer to two types of devices: - « Water Heater Booster: This \s an electronic f. a 2 device that attaches to your existing hot water heater, improving its efficiency and capacity by heating water on demand It helps ensure you have enough hot water available when needed. © 2 e Water Booster Pump This device increases the pressure of the water supply, making it useful for homes with low water pressure or for drawing water from wells. It enhances water flow to laps and appliances. © 2 Both types of boosters serve to improve water availability and pressure in different contexts. A © @4Souwces * waterheaterleakinginfo.com © Miami Water Heater ea Water Heater Boosters: What Water Heater Boosters: What You Should Know They Are And How They Work? View all -11- Serial No. 98641507 -12- Analysis 1. Genus and Relevant Public As the Federal Circuit has instructed, with respect to the first prong of the genericness inquiry, we focus on the identification in the involved application to determine the genus of goods. In re Cordua, 823 F.3d at 602; Magic Wand, 940 F.2d at 640 (a proper genericness inquiry focuses on the identification set forth in the application or certificate of registration). Here, the identification of goods in the application appropriately defines the genus as “well water pumping and supply systems.” As to the second prong of analysis, the relevant public is actual or potential purchasers of well water pumping and supply systems. Magic Wand, 940 F.2d at 640 (“[T]he relevant public [is] limited to actual or potential purchasers of the goods or services.”). 2. Analysis The inquiry here is whether consumers of the genus at issue here—“well water pumping and supply systems”—would primarily understand WATER BOOSTER as identifying the genus or a subcategory or key aspect thereof. The numerous third- party uses of WATER BOOSTER above demonstrate that competitors and others in the field use “water booster” to identify a subcategory or key aspect of “water pumping and supply systems,” including well water pumps that boost water pressure. Booking.com, 591 U.S. at 561 n.6 (“Evidence informing [the genericness] inquiry can include not only consumer surveys, but also dictionaries, usage by consumers and competitors, and any other source of evidence bearing on how consumers perceive a Serial No. 98641507 -13- term’s meaning.”); Sheetz of Del., Inc. v. Doctor’s Assocs., No. 91192657, 2013 TTAB LEXIS 468, at *31 (“[E]xamples of third-party use of the term ‘footlong’ (or ‘foot-long’) demonstrates use of the term to denote a type of sandwich” and “is strong evidence that purchasers will not be able to differentiate between competing sources by viewing the term ‘Footlong.’ Such use by competitors is evidence of genericness.”). Consistent with the third-party use, Applicant uses the wording WATER BOOSTER in its specimen to identify a type of water pump, namely, one that boosts the water pressure of wells and city water supplies. In re Consumer Prot. Firm PPL, No. 87445801, 2021 TTAB LEXIS 67, at *11 (“In assessing the primary significance of Applicant’s Proposed Marks to the relevant public, we also may consider Applicant’s use thereof.”); Sheetz of Del., 2013 TTAB LEXIS 468, at *29-30 (finding applicant’s own advertising “demonstrate[s] that applicant is not using the term ‘Footlong’ in a manner likely to be recognized as a trademark”); In re Central Sprinkler Co., No. 74505190, 1998 TTAB LEXIS 386, at *11-13 (affirming genericness refusal; “we cannot overlook how the relevant public will encounter the matter sought to be registered” as shown in applicant’s specimen and product literature). Applicant’s display of the proposed mark in initial capital letters and occasionally with a ™ designation does not change that the proposed mark is used in the text of Applicant’s advertising as a generic term for a part of its goods. We find that consumers encountering the industry uses, summarized above, and Applicant’s own use will understand WATER BOOSTER as generic for a subpart or Serial No. 98641507 -14- key aspect of “well water pumping and supply systems,” namely a well water pump that boosts water pressure. 29 Applicant argues that “the Examining Attorney has presented evidence of the use of the terms ‘Water Booster Pump’ and ‘Water Booster Pump System’ by the relevant public to refer to the genus of goods in question” but “has not presented any evidence that the relevant public uses just the term ‘Water Booster’ without more to refer to the genus of goods in question[.]”30 That is, Applicant argues that because the proposed mark does not include the term “pump” or “system,” generic terms for the broader genus of goods at issue, WATER BOOSTER cannot be generic for “well water pumping and supply systems.” This argument is wholly without merit. As noted above, it is well-established that a term is generic if it refers to a subcategory or key aspect of the genus of goods. In re Cordua, 823 F.3d at 605. This legal principle would be obliterated if we were to accept Applicant’s argument that a proposed mark cannot be generic if it does not include the generic term for the broader genus. Examples of a term for a genus subcategory or key aspect found to be generic include: (1) CHURRASCOS generic for the broad genus of restaurant services because such services encompass restaurants with a 29 Even if we were to identify the genus as “well water pumping and supply systems comprising [sic] primarily of electrical water pumps for household plumbing systems, water tanks of plastic for household purposes, electronic controllers configured for controlling water pumps, water flow detectors, pressure sensors, sold as a unit,” we would reach the same decision affirming the refusal because the evidence demonstrates that WATER BOOSTER refers to a key aspect of the goods, namely, an electrical water pump for household plumbing systems that boosts water pressure of well water pumping and supply systems. 30 Appeal Brief, 6 TTABVUE 12. Serial No. 98641507 -15- central focus on churrascos, In re Cordua, 823 F.2d at 604-05; (2) BUNDT generic for “ring cake mix” because BUNDT is a type of ring cake, In re Northland Aluminum, 777 F.2d at 1561; and (3) FOOTLONG generic for “sandwiches” because it “identifies a category of sandwiches 12 inches long,” Sheetz of Del., 2013 TTAB LEXIS 468, at *62-63. Each of the proposed marks was found generic despite the omission of the broader genus of goods or service, i.e. “restaurant,” “cake” and “sandwich.” Next, Applicant points to the Bing search results stating that “A water booster can refer to two types of devices: Water Heater Booster … [or] Water Booster Pump.”31 Applicant argues that because “‘water booster … refers to two distinct types of devices: (1) a water heater booster, and (2) a water booster pump” its “primary significance is ambiguous, and thus, it cannot be generic.32 More specifically, Applicant argues that “if the relevant public understands ‘water booster’ to refer to two different and unrelated categories of devices — water heater boosters and water booster pumps — then the term cannot ‘primarily’ refer to any one genus.”33 The Examining Attorney points out that the source is not identified for the above Bing search results stating that there are two types of “water boosters”: (1) a water heater booster; and (2) a water booster pump. Because the source has not been identified, we cannot ascertain the credibility of this information, lessening its probative value. But even giving full credit to this evidence, it does not help Applicant. 31 Appeal Brief, 6 TTABVUE 13. 32 Reply Brief, 9 TTABVUE 5. 33 Id. at 6. Serial No. 98641507 -16- There is no requirement that a term identify “any one genus.” Indeed, it is common for English-language words to have more than one meaning. For example, the word “baseball” refers to a sport, a sports player and sports equipment. The fact that “baseball” has three different meanings does not make the term any less generic for each of these things. Last, we note that in its reply brief, Applicant asserts two arguments that it did not make in its appeal brief or during prosecution. Applicant forfeited or waived these arguments by failing to raise them in its appeal brief when the Examining Attorney would have had the opportunity to respond.34 U.S. v. Ford Motor Co., 463 F.3d 1267, 1276 (Fed. Cir. 2006) (“Arguments raised for the first time in a reply brief are not properly before this court.”); Cross Med. Prods. v. Medronic Sofamor Danek, Inc., 424 F.3d 1293, 1320 n.3 (Fed. Cir. 2005) (declining to consider “new arguments raised for the first time in [a] reply brief”); Rocket Trademarks Pty. Ltd. v. Phard S.p.A., No. 91172486, 2011 TTAB LEXIS 39, at *37 (plaintiff’s reply brief “must be confined to rebutting the defendant’s main brief”); cf. In re Princeton Equity Grp. LLC, No. 97397212, 2025 TTAB LEXIS 242, at *6-9 (“Parties whose briefs purport to 34 Specifically, Applicant argues that the evidence (1) is “almost exclusively from industry sources—competitor websites and product listings—rather than from consumer-facing evidence of how the purchasing public understands the term,” Reply Brief, 9 TTABVUE 6; and (2) “predominantly concerns a broader genus of household water pressure boosters, not the specific integrated well water pumping and supply systems identified in the application.” Id. at 11. Even if not waived, these arguments are unpersuasive. The third-party uses are directed precisely to the relevant public and show that water boosters may be used to boost water pressure of any water supply system, including well water. Indeed, Applicant describes its goods as “adaptable to both well and city water supplies. It is perfect for those situated at the end of the water supply line, or for those using a shared well that requires increased output or pressure.” July 10, 2024 Specimen. Serial No. 98641507 -17- incorporate by reference arguments made during prosecution will be held to have failed thereby to present whatever arguments the incorporation statement purports to cover to the Board and will be deemed to have forfeited them.”). In sum, the industry use and Applicant’s own use, discussed above, leaves us with no doubt that consumers of well water pumping and supply systems encountering the proposed mark WATER BOOSTER would primarily understand it to refer to a subcategory or key aspect of well water pumping and supply systems, namely, a pump that boosts well water pressure.35 III. Conclusion Decision: The refusal to register the proposed mark WATER BOOSTER under Sections 23(c) and 45 of the Trademark Act is affirmed. 35 Based on the Bing search results, it appears that the genus for a “water heater booster” would be a water heater, which is different from a well water pump or system.
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