Test Your TTAB Judge-Ability: Is MOTIONPOWER Merely Descriptive of Electrical Generation?
The USPTO refused registration of the mark MOTIONPOWER for electricity generators and power generation services, on the ground of mere descriptiveness under Section 2(e)(1). The Examining Attorney relied on dictionary definitions of the constituent words, and of "kinetic energy power." Applicant argued that its mark is merely suggestive and that no other entity in its industry uses the term or has a need to do so. In re Kinetic Energy Corporation, Serial No. 77707733 (May 31, 2011) [not precedential].
Applicant's website and press releases indicated that its goods and services relate to the generation of power from the motion of vehicles. Applicant points out that moving vehicles possess kinetic energy, which can be converted into electricity. The website compares applicant’s technology with other sources of energy, including “wind power,” “solar power,” “hydro power” and “geothermal power.”
The Board concluded that the mark is merely descriptive:
The evidence shows that kinetic energy, the type of energy involved in applicant’s goods and services, is energy associated with motion. The evidence also shows use of terms such as “solar power” (generation of power from the sun), “wind power” (generation of power from the wind) and “hydro power” (generation of power from water). The construction of applicant’s term MOTIONPOWER is similar, and consumers are likely to perceive applicant’s designation as merely descriptive when used in connection with goods or services that feature the generation of power from motion.
Of course, whether Applicant is the first or only user of the term does not affect the Section 2(e)(1) mere descriptiveness determination.
And so the Board affirmed the refusal.
Text Copyright John L. Welch 2011.