TTAB Test: Is EV500 Merely Descriptive of Electric Vehicle Competitions?
The USPTO refused registration of the mark EV500 under Section 2(e)(1), finding the mark to be merely descriptive of the services of promoting, organizing, and conducting competition events involving electric vehicles. Applicant conceded that EV stands for "electric vehicles," but it argued that "500" has no significance with respect to its services, since electric vehicles are "unlikely candidates for any type of competition going for 500 miles or longer." How do you think this came out? In re Contour Hardening, Inc., Serial No. 85569491 (May 12, 2015) [not precedential].
Examining Attorney Jenny Park pointed to applicant's own use of EV500 in connection with an exhibition (advertised as a race) that it sponsored, in which two vehicles traveled 500 miles on the Indianapolis Motor Speedway. Articles and blog posts showed that the number "500" miles is a benchmark for electric vehicles to travel on one charge. Therefore, the examining attorney contended, EV500 merely indicates that applicant's services will feature a 500-mile race involving electric vehicles.
Applicant argued that, to its knowledge, there has never been a 500-mile competition for electric vehicles, due to their technical limitations in terms of speed, range, and charging time. "[I]f '500' means anything, other than simply being an arbitrary term, it could refer to other features or characteristics of a race, such as 500-volt electric vehicles or 500 laps."
The Board noted that applicant owns a Supplemental Registration for EV500 for closely related services, and applicant's acceptance of that registration constituted an admission that the mark was descriptive at the time of registration.
The Board saw no question that "500" has significance in the vehicle racing industry. "Indy 500" is the most famous race covering 500 miles. The record also showed that "500" represents the "mileage goal" for electric vehicles, and a Danish car builder has achieved it. Several articles discussed future efforts to attain that goal.
In short, there was "ample record evidence to support a finding that a 500 mile race for electric vehicles is possible in the future, and that electric vehicle and battery makers are trying to manufacture electric vehicles that can drive 500 miles on one charge." Applicant's recitation of services is not limited to exclude competitions of 500 miles, and could encompass same (even if there hasn't been one yet).
The Board therefore found the mark to be merely descriptive, and it affirmed the refusal to register.
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TTABlog note: Seems like this is a mark that may be descriptive in the future. Or maybe it's wishfully descriptive? Or lauditory?
Text Copyright John L. Welch 2015.