Thursday, January 08, 2009

"HYBRID HEAVE" Not Merely Descriptive of Deep-Water Energy Storage System, Says TTAB

Concluding that the term "hybrid" provides little, if any, useful information regarding Applicant's goods, and that the term "heave" is at most indirectly related to the goods, the Board jettisoned a Section 2(e)(1) refusal to register the mark HYBRID HEAVE, finding the mark not merely descriptive of an "energy storage and recovery system for active heave comprised primarily of a machine flywheel and a motor-generator for generating electricity" in class 7. In re Williams, Serial No. 77100894 (December 30, 2008) [not precedential].

Applicant's goods are used in offshore shipboard drilling operations, using flywheels to store energy. The Examining Attorney argued that HYBRID refers to the fact that the goods combine two or more technologies, and that HEAVE refers to the environment in which the goods are used: i.e., the ocean heaving up and down.

The Board gave the PTO's argument the old heave-ho, instead finding reasonable Applicant's assertion that:

"potential purchasers would perceive HYBRID, as used here, as suggesting 'clean energy at sea' or something similar, based on the general use of hybrid in relation to motor vehicles and other goods. Also, we likewise find reasonable applicant's argument that potential purchasers would find the combination of HYBRID and HEAVE in the mark incongruous, if not nonsensical."

Indeed, the Board found, "HYBRID makes no sense as a modifier of HEAVE. Any attempt to make sense of the combination of terms in the mark would require complex, multistage mental process."

Moreover, the Board assumed that "the potential purchasers of these expensive and sophisticated systems are themselves technically sophisticated," and are "more likely to perceive the HYBRID HEAVE mark as incongruous or nonsensical."

Accordingly, the Board reversed the refusal.

Text Copyright John L. Welch 2009.


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