1

 IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ALLEGHENY COUPLING COMPANY, )

)

Plaintiff, )

v. ) C.A. No. 06-76 Erie

) District Judge McLaughlin

BETTS INDUSTRIES, INC., )

)

Defendant. )

)

)

MEMORANDUM OPINION

McLAUGHLIN, SEAN J., J.

This matter is before the Court upon a motion for summary judgment filed by Defendant

Betts Industries, Inc. (“Defendant” or “Betts”) against Plaintiff Allegheny Coupling Company

(“Plaintiff” or “Allegheny Coupling”). For the reasons which follow, Defendant’s motion for

summary judgment is granted and this action is dismissed.

I. BACKGROUND

Allegheny Coupling, founded in 1955, markets and sells industrial couplings and fittings.

(Deposition of Raymond V. Heelan (“Heelan Depo.”), p. 40). Allegheny Coupling does not own or

operate anyproduction facilities or produce its own products. Rather, it engages various “job shops”

to produce its product line, including H&H Metal Specialty, Inc. (“H&H”) and Rand Machine

Company (“Rand”). (Heelan Depo., p. 36). The “Allegheny” portion of the company’s name is

derived from the Allegheny region of Western Pennsylvania where the company is situated. (Heelan

Depo., p. 40).

Case 1:06-cv-00076-SJM Document 86 Filed 03/18/10 Page 1 of 15
Although the parties dispute various details of this transaction, that dispute is 1

not material to our resolution of the summary judgment motion.

2

Prior to 1997, a sister company, Allegheny Valve, marketed and sold various valve products

including mechanical emergency valves, gate valves and operators for the truck tank industry. Like

Allegheny Coupling, it utilized job shops such as H&H to produce component parts and products.

(Heelan Depo., pp. 38-40). 

Betts Industries, Inc. (“Betts”) was founded in 1901 as a foundry and job shop and

eventually grew to become a manufacturer of its own proprietary products for the highway cargo

tank industry. (Affidavit of Rodney E. Betts, ¶¶ 3-6). Prior to 1997, Betts manufactured 3-inch and

4-inch mechanical emergency valves for Allegheny Valve. (Deposition of Richard Betts (“Betts

Depo.”), pp. 18-22). Design drawings for the mechanical valves were prepared and maintained by

AlleghenyValve and depicted the various component parts of each of their products. Betts obtained

the valve bodies necessary to manufacture the mechanical emergency valves directly from H&H. 

On May 30, 1997, Betts entered into a purchase agreement with respect to Allegheny

Valve’s line of products. (Heelan Depo., pp. 43, 53-55). Following this transaction, H&H stopped 1

stamping the name “Allegheny” or “Allegheny Valve” upon the mechanical emergency valves that

it manufactured and replaced the stamp with one that embossed the name “Betts” on the valve.

(Deposition ofBrian Cici (“Cici Depo.”), pp. 60-61). From 1983 through approximately 2004, Betts

alleges that it purchased various parts necessary for the production of its own products directly from

H&H. 

Allegheny Coupling specifically asserts trademark protection for the phrases “Allegheny

Coupling,” “Allegheny Coupling Co.” and “Allegheny Coupling Company.” On March 23, 2006,

Allegheny Coupling filed a request with the United States Patent and Trademark Office (“USPTO”)

to register its mark on the USPTO’s Principal Register. Registration on the Principal Register is

reserved for arbitrary/fanciful or suggestive marks, or descriptive marks that have acquired secondary

meaning, and constitutes prima facia evidence of the validity of a trademark and the owner’s

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3

exclusive right to use it in commerce. See 15 U.S.C. §1057(b). On September 7, 2006, the USPTO

refused Allegheny Coupling’s request to register its mark “because the mark is primarily

geographically descriptive of the origin of applicant’s goods and/or services.” (Heelan Depo. Ex.

13). Allegheny Coupling did not respond or object to the USPTO’s refusal to register its mark

resulting in a declaration by the USPTO that the application for registration had been “abandoned.”

(USPTO Notice of Abandonment, June 29, 2007).

Allegheny Coupling subsequently requested registration of its mark on the USPTO’s

Supplemental Register. The Supplemental Register is for marks comprised of descriptive terms that

may be capable of acquiring secondary meaning. It provides none of the presumptions provided by

registration on the Principal Register and does not constitute a determination that a mark is entitled

to protection. See 15 U.S.C. §§ 1091-96. Allegheny Coupling’s application for the Supplemental

Register was approved by the USPTO on June 26, 2007. In approving the request for Supplemental

Registration, the USPTO required Allegheny Coupling to disclaim “the generic phrase ‘coupling

co.’” (Heelan Depo. Ex. 13). 

On March 24, 2006, Plaintiff filed the instant action seeking damages and injunctive relief.

Plaintiff’s Third Amended Complaint, filed on December 7, 2007, asserts claims for trademark

infringement under the Lanham Act, 15 U.S.C. § 1125(a)(1) (Count I), trade dress infringement

under the Lanham Act, 15 U.S.C. § 1125(a) (Count II), and various state and common law claims

including unjust enrichment and theft of product. Allegheny Coupling contends that it owns the

designs and tooling for those products manufactured by H&H and sold directly to Betts and,

therefore, H&H’s direct sales of those products to Betts constituted trademark infringement and theft

of product:

Upon information and belief, Betts Industries has, over a period of

years, purchased numerous Allegheny products from and in

collusion with H & H Metal Specialty Inc. of Jamestown, a job

shop for Allegheny (H & H), the result of which has been to

defraud Allegheny of its rightful sales income. Upon information

and belief, these products have included Allegheny Marks or trade

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4

dress configuration, or the Allegheny Marks or trade dress

configuration have been deliberately altered or removed.

(Third Amended Complaint, ¶ 13) Following discovery, Plaintiff voluntarily withdrew the trade

dress claim. (See Plaintiff’s Brief in Opposition, p. 10).

On March 31, 2009, Defendant filed a motion seeking summary judgment as to the

remaining trademark infringement and state law claims. On June 12, 2009, Plaintiff filed a brief in

opposition. This matter is ripe for review.

II. STANDARD FOR REVIEW

Federal Rule of Civil Procedure 56(c)(2) provides that summary judgment shall be granted

if the “pleadings, the discovery and disclosure materials on file, and any affidavits show that there

is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of

law.” Rule 56(e) further provides that when a motion for summary judgment is made and supported,

“an opposing party may not rely merely on allegations or denials in its own pleading; rather, its

response must – by affidavits or as otherwise provided in this rule – set out specific facts showing

a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if

appropriate, be entered against that party.”

A district court may grant summaryjudgment for the defendant when the plaintiff has failed

to present any genuine issues of material fact. See Fed. R. Civ. P. 56(c); Krouse v. American

Sterilizer Company, 126 F.3d 494, 500 n.2 (3 Cir. 1997). The moving party has the initial burden rd

of proving to the district court the absence of evidence supporting the non-moving party's claims.

Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Country Floors, Inc. v. Partnership Composed of

Gepner and Ford, 930 F.2d 1056, 1061 (3 Cir. 1990). Further, “[R]ule 56 enables a party

rd

contending that there is no genuine dispute as to a specific, essential fact ‘to demand at least one

sworn averment of that fact before the lengthy process of litigation continues.’” Schoch v. First

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5

Fidelity Bancorporation, 912 F.2d 654, 657 (3 Cir. 1990) (quoting Lujan v. National Wildlife rd

Federation, 497 U.S. 871 (1990)). 

The burden then shifts to the non-movant to come forward with specific facts showing a

genuine issue for trial. Matsushita Elec. Indus. Company v. Zenith Radio Corp., 475 U.S. 574

(1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3 Cir. 1989) (the rd

non-movant must present affirmative evidence - more than a scintilla but less than a preponderance

- which supports each element of his claim to defeat a properly presented motion for summary

judgment). The non-moving partymust go beyond the pleadings and show specific facts by affidavit

or by information contained in the filed documents (i.e., depositions, answers to interrogatories and

admissions) to meet his burden of proving elements essential to his claim. Celotex, 477 U.S. at 322;

Country Floors, 930 F.2d at 1061.

A material fact is a fact whose resolution will affect the outcome of the case under

applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Although the court

must resolve any doubts as to the existence of genuine issues of fact against the party moving for

summary judgment, Rule 56 “does not allow a party resisting the motion to rely merely upon bare

assertions, conclusory allegations or suspicions.” Firemen’s Ins. Company of Newark, N.J. v.

DuFresne, 676 F.2d 965, 969 (3 Cir. 1982). Summary judgment is only precluded if the dispute rd

about a material fact is “genuine,” i.e., if the evidence is such that a reasonable jury could return a

verdict for the non-moving party. Anderson, 477 U.S. at 247-249. 

III. ANALYSIS

Section 43(a)(1)(A) of the Lanham Trademark Act of 1946 (“Lanham Act”) provides in

relevant part that:

(1) Any person who, on or in connection with any goods or

services, or any container for goods, uses in commerce any word,

term, name, symbol, or device, or any combination thereof, or any

false designation of origin, false or misleading description of fact,

or false or misleading representation of fact, which--

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A mark becomes incontestable after the registrant “files affidavits stating that 2

the mark has been registered, and that it has been in continuous use for five

consecutive years subsequent to registration. In addition, the owner must show

that there is no proceeding contesting the owner’s rights to registration, and that

there has been no adverse decision regarding the registrant's ownership or right

to registration.” Commerce Bancorp, Inc. v. BankAtlantic, 285 F.Supp.2d 475,

484 n. 5 (D.N.J. 2003).

As noted above, Plaintiff’s mark was denied registry on the Principal Register. 3

Although the mark was subsequently approved for registration on the

Supplemental Register, such registration does not confer any substantive

trademark rights and “is not evidence of ownership, validity, or the exclusive

(continued...)

6

(A) is likely to cause confusion, or to cause mistake, or to

deceive as to the affiliation, connection, or association of

such person with another person, or as to the origin,

sponsorship, or approval of his or her goods, services, or

commercial activities by another person . . .

shall be liable in a civil action by any person who believes that he

or she is or is likely to be damaged by such act.

15 U.S.C. § 1525(a)(1)(A). “The Lanham Act was intended to make ‘actionable the deceptive and

misleading use of marks’ and ‘to protect persons engaged in . . . commerce against unfair

competition.’” Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 767-68 (1992) (quoting 11

U.S.C. § 1127).

In order to establish a claim for trademark infringement under the Lanham Act, a plaintiff

must prove the following three elements: “(1) the marks are valid and legally protectable; (2) the

marks are owned by the plaintiff; and (3) the defendant’s use of the marks to identify goods or

services is likely to create confusion concerning the origin of the goods or services.” Ford Motor

Co. v. Summit Motor Products, Inc., 930 F.2d 277, 291 (3 Cir. 1991)(citing Opticians Ass’n of rd

America v. Independent Opticians of America, 920 F.2d 187, 192 (3 Cir. 1990)). When a mark is rd

federally registered on the USPTO Principal Register and has become “incontestible,” the 2

ownership, validity, and protectability of the mark are established. Commerce Nat’l Ins. Servs., Inc.

v. Commerce Ins. Agency, Inc., 214 F.3d 432, 438 (3 Cir. 2000). However, where a mark is not rd

registered on the Principal Register, a plaintiff must prove that the mark “is inherently distinctive 3

Case 1:06-cv-00076-SJM Document 86 Filed 03/18/10 Page 6 of 15
(...continued) 3

right of use . . .” In re Bush Bros. & Co., 884 F.2d 569, 570 n. 2 (citing J.T.

McCarthy, Trademarks and Unfair Competition, § 19.8, at 886-88); see also 15

U.S.C. §§ 1091-96. 

7

or that it has developed secondary meaning” in order to establish validity and protectability. Colur

World, LLC v. SmartHealth, Inc., 2010 WL 299512 (E.D. Pa. 2010). 

To determine whether a mark is inherently distinctive, the court must assign it to one of the

following four categories:

[1] arbitrary (or fanciful) terms, which bear no logical or

suggestive relation to the actual characteristics of the goods; [2]

suggestive terms, which suggest rather than describe the

characteristics of the goods; [3] descriptive terms, which describe

a characteristic or ingredient of the article to which it refers[;] and

[4] generic terms, which function as the common descriptive name

of a product class.

E.T. Browne Drug Co., 538 F.3d at 191 (quoting A.J. Canfield Co. v. Honickman, 808 F.2d 291, 296

(3 Cir. 1986)) (internal citations and quotation marks omitted). Marks which are determined to be rd

arbitrary, fanciful or suggestive are inherently distinctive and enjoy Lanham Act protection without

a showing of secondary meaning. Ford Motor Co., 930 F.2d at 291 n. 18. In contrast, marks which

are merely descriptive must acquire secondary meaning before they are entitled to Lanham Act

protection. Id. See also E.T. Browne Drug Co. v. Cococare Products, Inc., 538 F.3d 185, 199 (3rd

Cir. 2008).

Allegheny Coupling concedes that the phrases “Allegheny Coupling,” “Allegheny Coupling

Co.,” and “Allegheny Coupling Company” are geographically descriptive rather than inherently

distinctive. See Plaintiff’s Brief in Opposition, p. 6; see also USPTO Notice, Defendant’s Concise

Statement of Material Facts, Ex. 11 (refusing registration of AlleghenyCoupling’s mark on the basis

that they are “primarily geographically descriptive of the origin of applicant’s goods and/or services”

rather than inherently distinctive). Because the marks at issue are not inherently distinctive, Plaintiff

must show that they have acquired distinctiveness through secondary meaning in order to establish

that the marks are entitled to protection. See AFL Philadelphia LLC v. Krause, 639 F.Supp.2d 512,

Case 1:06-cv-00076-SJM Document 86 Filed 03/18/10 Page 7 of 15
8

(E.D. Pa. 2009) (noting that descriptive marks “are treated as protectable marks only upon showing

of . . . secondary meaning”); Delaware Valley Financial Group, Inc. v. Principal Life Ins. Co., 640

F.Supp.2d 603, 619 (E.D. Pa. 2009) (finding that “geographical marks” are only capable of being

protected if they have “acquired secondary meaning”).

“Secondary meaning is a new and additional meaning that attaches to a word or symbol that

is not inherently distinctive.” E.T. Browne, 538 F.3d at 199 (quoting 2 McCarthy on Trademarks

§ 15:1). In order to establish secondary meaning, a plaintiff must show that “customers associate

[the alleged trademark] with a single, albeit anonymous, commercial source.” AcademyOne, inc.

v. CollegeSource, Inc., 2009 WL 5184491, *10 (E.D. Pa. 2009) (quoting 2 McCarthy on

Trademarks, § 15:1 at 6). As the Third Circuit has explained:

Secondary meaning exists when the trademark is interpreted by the

consuming public to be not only an identification of the product,

but also a representation of the product’s origin. Secondary

meaning is generally established through extensive advertising

which creates in the mind of consumers an association between

different products bearing the same mark. This association

suggests that the products originate from a single source. Once a

trademark which could not otherwise have exclusive appropriation

achieves secondary meaning, competitors can be prevented from

using a similar mark. The purpose of this rule is to minimize

confusion of the public as to the origin of the product and to avoid

diversion of customers misled by a similar mark.

E.T. Browne, 538 F.3d at 199 (quoting Scott Paper Co. v. Scott’s Liquid Gold, Inc., 589 F.2d 1225,

1228 (3 Cir. 1978)). rd

“Although there are numerous cases determining secondarymeaning, there is no consensus

on its elements.” Ford Motor Co., 930 F.2d at 292 (quoting American Scientific Chemical, Inc. v.

American Hospital Supply Corp., 690 F.2d 791, 792 (9 Cir. 1982)). The Third Circuit has th

enumerated the following non-exclusive list of factors to be considered in determining whether a

mark has acquired secondary meaning: 

(1) extent of sales and advertising leading to buyer association; (2)

length of use; (3) exclusivity of use; (4) fact of copying; (5)

customer surveys; (6) customer testimony; (7) use of mark in trade

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journals; (9) size of company, (9) number of sales; (10) number of

customers; and (11) actual confusion. 

See Commerce Nat’l Ins. Servs., 214 F.3d at 438; Tillery v. Leonard & Sciolla, LLP, 521 F.Supp.2d

346, 349 (E.D. Pa. 2007). When the challenged phrase is “particularly descriptive,” such as the

geographical mark in this case, the “evidentiary bar” required to show secondary meaning “must be

placed somewhat higher.” E.T. Browne, 538 F.3d at 199.

In E.T. Browne, the plaintiff, a manufacturer of personal care products containing cocoa

butter, sought trademark protection over the phrase “Cocoa Butter Formula.” Id. at 189. The

district court granted summary judgment in favor of the defendant after concluding that the phrase

was generic and, therefore, not protectable as a trademark. Id. Although the Third Circuit

determined that there was an issue of fact as to whether the phrase “Cocoa Butter Formula” was

generic or descriptive, it ultimately concluded that summary judgment was appropriate on the

alternative ground that sufficient evidence had not been produced to raise a triable issue of fact as

to whether the phrase had acquired a secondary meaning. Id. at 198. In that regard, the evidence

proffered by the plaintiff included: its use and promotion of the phrase “Cocoa Butter Formula”

continuously for 20 years; the substantial amounts of money it had spent promoting the phrase; the

nature and quality of the company’s advertising efforts in support of the phrase; their competitor’s

attempts to copy the phrase; and the increased sales of products that were branded with the phrase.

Id. at 199. After reviewing this evidence, the Court concluded that it was insufficient to raise a

genuine issue of fact on the question of secondary meaning: 

The evidence’s core deficiency is that while it shows Browne used

the term “Cocoa Butter Formula” on many occasions over a long

period of time, it does not show Browne succeeded in creating

secondary meaning in the minds of consumers. Although the

evidence leaves no doubt that Browne hoped the term would

acquire secondary meaning, nothing shows that it achieved this

goal. Jurors would have to make a leap of faith to conclude that

the term gained secondary meaning because the record fails to

provide meaningful support. A jury could evaluate the quality of

the advertising or consider the rise in product sales, but it would

have to guess what lasting impression the advertising left in the

Case 1:06-cv-00076-SJM Document 86 Filed 03/18/10 Page 9 of 15
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mind of consumers or what portion of Browne’s revenue growth

it caused.

Id. at 199. The Court acknowledged that secondarymeaning can be inferred, in some instances, from

evidence of advertising and sales growth, but indicated that the reasonableness of such an inference

would depend upon whether, for example, “[the] term had gained secondary meaning [because] it

had appeared for a long period of time in a prevalent advertising campaign” or whether the evidence

showed “revenue growth simultaneous with such marketing.” Id. at 199-200. The Court further

opined that survey evidence of consumer awareness of an alleged mark’s secondary meaning, while

not required, often constitutes the most persuasive evidence in establishing secondary meaning: 

Browne could have overcome these deficiencies in its evidence by

conducting a secondary meaning survey in the same way it

conducted its genericness survey. It could have used survey

evidence to show that “Cocoa Butter Formula” had acquired

secondary meaning in the minds of consumers, thus creating a

genuine issue of material fact on that issue. We never have held,

and do not hold today, that a party seeking to establish secondary

meaning must submit a survey on that point. However, Browne's

failure to conduct a secondary meaning survey leaves it without

evidence of any sort in this case of the secondary meaning of the

term “Cocoa Butter Formula.”

Id. at 200-01. 

Similarly, in AcademyOne, Inc. v. CollegeSource, the district court granted summary

judgment based upon the plaintiff’s failure to have produced sufficient evidence of secondary

meaning so as to raise a genuine issue of material fact. AcademyOne, 2009 WL 5184491. The

plaintiff in AcademyOne owned and operated a website located at the internet domain

“collegetransfer.net.” When a rival company introduced a competing site utilizing the domain name

“collegetransfer.com,” plaintiff filed an action under the Lanham Act asserting that

“collegetransfer.net” constituted a valid and legally protectable trademark. Id. To support its claim,

AcademyOne introduced evidence of specific marketing campaigns, such as purchasing advertising

on internet search engines, attendance at conferences, issuance of press releases, and “significant”

expenditures on other promotions and marketing. Id. at *11. AcademyOne also introduced

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More specifically, AcademyOne introduced evidence that “it had revenues of 4

$805,698 in 2007, that ‘the web applications at www.collegetransfer.net’

received 52,885 visitors in 2007, and that it had fourteen academic institutions

and higher education agencies as subscribers . . .” Id. at *12.

11

brochures that promoted collegetransfer.net, submitted evidence concerning sales and revenues, and

provided evidence that the number of visitors to the website had increased over the course of the two

years prior to the alleged infringement. Id. at *12. AcademyOne further argued that the very fact

4

that a competitor attempted to copy its mark was indicative of secondary meaning. Id. at *15.

Nonetheless, the court held that AcademyOne had “failed to satisfy its summary judgment burden

of pointing to record evidence that creates a genuine issue of material fact as to collegetransfer.net’s

secondary meaning . . .”. Id. In so doing, the Court observed:

[T]he absence of any direct evidence of [the] mark’s alleged

secondary meaning is telling. While the evidence of advertising

and sales figured conclusively demonstrates that [Plaintiff] “hoped

the term would acquire secondary meaning, nothing shows that it

achieved that goal.”

Id. at *15 (quoting ComponentOne, LLC v. ComponentArt, Inc., 2008 WL 4790661, *12 (W.D. Pa.

2008) (quoting E.T. Browne, 538 F.3d at 199)). The court noted that AcademyOne “[had] not

submitted any formal survey evidence designed to demonstrate consumer awareness of

collegetransfer.net” and had failed to show that the alleged marketing and sales growth “were in any

way connected to consumer recognition” of collegetransfer.net. Id. at *13. See also ComponentOne,

2008 WL 4790661, *12 (“The evidence of ComponentOne’s marketing expenditures and sales,

while relevant for circumstantially establishing an association in the minds of consumers ‘between

the mark and the provider of goods and services advertised under the mark,’ does not, in the Court’s

view, demonstrate secondary meaning or commercial strength in and of itself.”).

Here, Allegheny Coupling has produced even less evidence in support of its contention that

its mark has acquired a secondary meaning than the plaintiffs in E.T. Browne and AcademyOne.

Specifically, Allegheny Coupling offers only the declaration of Raymond Heelan, the President and

Chairman of Allegheny Coupling, and a transcript of a video prepared by Thomas E. Webber, the

Case 1:06-cv-00076-SJM Document 86 Filed 03/18/10 Page 11 of 15
12

president of Oilmen’s Truck Tanks, an Allegheny Coupling customer. (See Heelan Declaration,

Plaintiff’s Ex. B; Webber Declaration and Transcript, Plaintiff’s Ex. A). The relevant paragraphs

of the Heelan declaration state that:

7. Since 1955 Coupling has exclusively and continuously used the

names and marks Allegheny Coupling and Allegheny Coupling

Co. (the “Coupling Trademark”) on its pipe fittings, couplings and

various other products.

8. Coupling has since 1955 been engaged in extensive advertising

and sale of its trademarked products to the hazardous liquids

handling industry, and is widely recognized within that industry by

its trademark.

(Heelan Declaration, Plaintiff’s Ex. B, ¶¶ 7-8). With regard to the Webber video, Plaintiff contends

that Webber’s “candid comments demonstrate that in his mind, the words ‘Allegheny Coupling’

carry the assurance that the goods which bear that mark have their origin or source in the very

company he has come to trust, and from whom he confidently purchases irrespective of its actual

geographic location.” See Plaintiff’s Brief in Opposition, p. 7. I find that Plaintiff’s evidence, when

considered cumulatively, is insufficient to raise a triable fact as to the existence of secondary

meaning.

As to Heelan’s declaration, his contention that Plaintiff’s mark “is widely recognized within

that industry” is conclusory and completely lacking in evidentiary support. See, e.g., Firemen’s Ins.,

676 F.2d at 969 (noting that Rule 56 does not allow a party resisting summary judgment “to rely

merely upon bare assertions, conclusory allegations or suspicions.”); see also Gimix, Inc. v. JS &

A Group, Inc., 699 F.2d 901, 907-08 (7 Cir. 1983) (holding that an affidavit that alleged that “Auto th

Page was well-known as a trademark for Gimix’ product” was “conclusory in nature and did not

adequately place the question of secondary meaning to consumers in issue” and, therefore, did not

raise a triable issue as to secondary meaning). Here, Plaintiff has provided no direct evidence in the

form of customer surveys, specific marketing campaigns or sales figures utilizing the mark, revenue

growth accompanied by advertising, or anything else capable of supporting the reasonable inference

that the descriptive phrase “Allegheny Coupling” has acquired secondary meaning. See E.T.

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13

Browne, 538 F.3d at 199 (noting that evidence of advertising and sales using a mark demonstrate

only that the user “hoped the term would acquire secondary meaning” rather than that it had done

so); Homeowners Group, Inc. v. Home Mktg. Specialists, Inc. 931 F.2d 100, 1008 (6 Cir. 1991) th

(noting that advertising budgets have only “an attenuated link to actual market recognition”).

Although a survey is not required to demonstrate secondary meaning, see E.T. Browne, 538 F.3d at

201, surveyevidence “has become a well-recognized means of establishing secondary meaning” and

often constitutes “the only direct evidence on this question.” See, e.g., Boston Beer Co. L.P. v.

Slesar Bros Brewing Co., Inc., 9 F.3d 175, 182-83 (1 Cir. 1993) (discussing the importance of st

survey evidence in establishing secondary meaning); E.T. Browne, 538 F.3d at 200-01 (“Browne

could have overcome [the] deficiencies in its evidence by conducting a secondary meaning survey

. . . to show that “Cocoa Butter Formula” had acquired secondary meaning in the minds of

consumers . . .”); PaperCutter, Inc. v. Fay’s Drug Co., Inc., 900 F.2d 558, 564 (2 Cir. 1990) (noting nd

the absence of “survey evidence of a representative sample of consumers”); Gimix, 699 F.2d at 907

(“Consumer testimony and consumer surveys are the only direct evidence [of secondary meaning].

. . . The other factors are relevant in a more circumstantial fashion.”).

 A review of the Webber video transcript similarly fails to support Plaintiff’s proposition

that the mark has acquired secondarymeaning. Fairly summarized, Webber’s testimonial, prepared

for advertising use on Allegheny Coupling’s website, states only that Plaintiff produces a “good

product” and that Plaintiff’s fittings are extensively and successfully utilized in the tank truck

industry. At no point does Webber opine on the nature of the Allegheny Coupling mark or the

strength of that mark in the industry, nor indicate that the word “Allegheny” has acquired a

secondary meaning independent of its geographical connotation. (Webber Transcript, Plaintiff’s Ex.

A, pp. 4-6).

In sum, I conclude that Plaintiff has failed to meet its burden of producing sufficient

evidence to raise a triable issue of fact as to whether the “Allegheny Coupling” mark has acquired

Case 1:06-cv-00076-SJM Document 86 Filed 03/18/10 Page 13 of 15
Having dismissed Plaintiff’s federal cause of action, I decline to exercise 5

pendent jurisdiction over the remaining state law claims. “[P]endent

jurisdiction is a doctrine of discretion, not of plaintiff’s right.” CarnegieMellon University v. Cohill, 484 U.S. 343, 350 (1988) (quoting United Mine

Workers of America v. Gibbs, 383 U.S. 715, 725-27 (1966)). In general, “if the

federal claims are dismissed before trial . . . the state claims should be

dismissed as well.” Gibbs, 383 U.S. at 726 (acknowledging that “in the usual

case in which all federal-law claims are eliminated before trial, the balance of

factors to be considered under the pendent jurisdiction doctrine - judicial

economy, convenience, fairness, and comity - will point toward declining to

exercise jurisdiction over the remaining state-law claims”). 

14

secondary meaning. As such, Plaintiff lacks a protectable trademark interest in the Allegheny

Coupling mark and Defendant is entitled to summary judgment.5

IV. CONCLUSION

For the reasons stated herein, Defendant’s motion for summary judgment is granted and this

action is hereby dismissed. An appropriate order follows. 

Case 1:06-cv-00076-SJM Document 86 Filed 03/18/10 Page 14 of 15
15

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ALLEGHENY COUPLING COMPANY, )

)

Plaintiff, )

v. ) C.A. No. 06-76 Erie

) District Judge McLaughlin

BETTS INDUSTRIES, INC., )

)

Defendant. )

)

)

ORDER

AND NOW, this 18 day of March, 2010, and for the reasons set forth in the accompanying th

Memorandum Opinion, 

IT IS HEREBY ORDERED that Defendant Betts Industry’s Motion for Summary Judgment

is GRANTED and this action is DISMISSED. Judgment is entered in favor of Betts Industries and

against Allegheny Coupling as to Allegheny Coupling’s Lanham Act claim. The pendent state law

claims are dismissed without prejudice. 

It is so ORDERED.

/s/ Sean J. McLaughlin 

United States District Judge

cm: All parties of record. ___

Case 1:06-cv-00076-SJM Document 86 Filed 03/18/10 Page 15 of 15