Thursday, November 19, 2015

WYHA? TTAB Finds "SOL-R" Merely Descriptive of Solar Panel Brackets

The USPTO issued a Section 2(e)(1) refusal of the mark SOL-R, finding it to be merely descriptive of constructions materials, including "metal cantilevered brackets for solar panels" and "roofing incorporation solar cells." Examining Attorney Rebecca A. Smith perceptively maintained that SOL-R is a novel spelling of SOLAR. Applicant SFS contended that consumers viewing the mark alone would not immediately know that the goods are used with solar panel installations. Would you have appealed? In re SFS Intec Holding AG, Serial No. 79109409 (November 16, 2015) [not precedential].

As we all know, the determination of mere descriptiveness is not a guessing game. [This argument is high on the top ten list of losing TTAB arguments - ed.]. A mark must be considered in the context of the goods at issue. Here, applicant's goods specifically refer to solar installations and panels.

Applicant also argued that SOL-R does not, by itself, convey the word "solar," and even if "SOL-R indicates some relationship to 'solar' or even the sun, there is nothing about the mark or the identification of goods that definitely indicates the products' function, characteristics, or use with specificity." The Board noted that applicant's use of the term "solar" through its identification of goods belied that contention.

The Board found that SOL-R is an alternative spelling of "solar" and would be perceived as such. A slight misspelling of a merely descriptive word generally does not transform the word into an inherently distinctive trademark. As the Supreme Court has noted, "[b]ad orthography has not yet become so rare or so easily detected as to make a word the arbitrary sign or something else than its conventional meaning."

And so the Board affirmed the refusal.

Read comments and post your comment here.

TTABlog comment: Well, would you have?

Text Copyright John L. Welch 2015.


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