Wednesday, July 27, 2005

"MICROCELL" Merely Descriptive of Small Fuel Cells, Says TTAB

The Board wasted little energy in affirming a Section 2(e)(1) refusal to register the mark MICROCELL, finding it merely descriptive of "power source and energy supply devices, namely, fibrous fuel cells, fibrous batteries, and energy storage fuel cells." In re Microcell Corp., Serial No. 75931410 (July 13, 2005) [not citable].

Applicant Microcell Corporation offered a battery of arguments that were non-starters: that its goods are not necessarily "micro" in size; that the words "micro" and "cell" have a multiplicity of meanings (e.g., "trivial and slight" and "a small room where a prisoner is kept"); that the mark requires "mature thought" to "determine the involved goods;" that its goods are not small in size; and that there is no evidence that others in the field use the word descriptively.

Examining Attorney Heather D. Thompson, who played a leading role in Monday's TTABlog posting, again relied on her handy American Heritage Dictionary for definitions of "micro" (small scale) and "cell" (a single unit for electrolysis or conversion of chemical into electrical energy); on NEXIS database excerpts containing the word "microcell"; on Microcell's s website (referring to "compact fuel cells"); and on its statement that "Essentially more energy can be produced from a smaller compartment."

The Board, for the umpteenth time, pointed out that the determination of mere descriptiveness is not to be made in a vacuum, but in relation to the involved goods:

"Consequently, '[w]hether consumers could guess what the product [or service] is from consideration of the mark alone is not the test.' In re American Greetings Corp., 226 USPQ 365, 366 (TTAB 1985). Rather, the question is whether someone who knows what the goods or services are will understand the term or phrase to convey information about them."

The Board agreed with the PTO that MICROCELL immediately and directly conveys information about a significant feature of the involved goods: "that applicant's fuel cells are compact, offering more energy from a smaller compartment, and/or can literally be small in size." It found that Microcell's identification of goods "is broad such that it encompasses small fuel cells or fuel cells with small, compact compartments."

Finally, the Board observed once again that even if Applicant were the first or and/only user of the term MICROCELL in relation to its goods, the term is still merely descriptive. "[A]pplicant's competitors would have a competitive need to use this term."

TTABlog comment: I suppose that if one considered the word "microcell" in the abstract, one might think it referred to a tiny cage for incarceration of a wee insect.

Text Copyright John L. Welch 2005. All Rights Reserved.


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