Another TTAB Test: Is RADIANT POWER Merely Descriptive of Electricity Provider Services?
The USPTO refused registration of the marks RADIANT POWER for "retail electricity provider services that allow customers to purchase electricity" and RADIANT for the same services, as well as for "generation of electricity from solar energy." Applicant appealed, arguing that "radiant" is a double entendre, one of the meanings being suggested by the words of Charlotte the spider in Charlotte's Web, when she called Wilbur the pig "radiant." How do you think this came out? In re Distribusun LLC, Serial Nos. 85912404 and 8591242 (December 10, 2014) [not precedential].
Examining Attorney Michael A. Wiener relied on dictionary definitions of "radiant power" and of the constituent words, as well as on applicant's own promotional material that indicated that applicant's services involve the generation of electricity via solar power.Third-party websites and other publications describe solar energy as the "radiant power" produced by the sun.
Applicant maintained that, in view of the technical process of converting "radiant power" from the sun into electrical power, a consumer must exercise thought, imagination, or perception in order to arrive at the meaning of the mark espoused by the examining attorney. The Board was not persuaded that any such analysis of the mark would be required, since "radiant power" is a "defined and used term." The mark informs consumers that an aspect of applicant's services "is that the electricity it provides is derived from radiant power, that is, power from rays of light coming from the sun."
Applicant also argued that RADIANT POWER is a double entendre, one meaning of "radiant" being "showing an attractive quality of happiness, love, health, etc." In that connection, applicant provided a passage from the children's book Charlotte's Web, in which "the spider Charlotte used the word 'Radiant' in describing the positive aspects of her friend Wilbur the pig:"
"And when his audience grew bored, he would spring in the air and do a back flip with a half twist. At this the crowd would yell and cheer. 'How's that for a pig?' Mr. Zuckerman would ask, well pleased with himself. 'That pig is radiant.'"
Applicant asserted that, with regard to electrical power, it strives "for its services and products to be described as radiant." Solar energy evokes positive feelings in consumers and, applicant urged, the word "radiant" in its mark is a play on those feelings of happiness and well-being.
The Board found that argument "imaginative" but unpersuasive. There was no evidence that consumers recognize that second meaning, and applicant's argument was based only on conjecture.
The Board concluded that the mark RADIANT POWER immediately informs consumers that the electricity applicant provides is derived from radiant power generated by the sun.
As to the mark RADIANT, the Board applied the same reasoning, concluding that the mark, as an adjective, describes the nature of the electricity that applicant provides.
And so the Board affirmed both refusals.
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TTABlog note: So, how did you do? Note applicant's name, DistribuSUN !
Text Copyright John L. Welch 2014.