TTAB Renders Split Decision in "ELECTRIC LAST MILE SOLUTIONS" Section 2(d) Appeal

The Board affirmed-in-part and reversed-in-part a Section 2(d refusal to register the mark ELECTRIC LAST MILE SOLUTIONS in five classes: batteries and chargers (class 9), vehicles and electric vehicle (12), floor mats (27), electric vehicle retail services (35) and repair of electric vehicles (37). The Board found confusion likely with the registered mark LAST MILE for electric vehicles as to applicant's class 12, 35, and 37 goods and services, but not likely as to the class 9 and 27 goods and services. In re Mullen Automotive Inc., Application Serial No. 90366095 (April 11, 2023) [not precedential] (Opinion by Judge Marc A. Bergsman).

The cited mark, registered on the Principal Register without a claim under Section 2(f), is presumed to be inherently distinctive. The Board noted that "Last Mile," when used in connection with Registrant’s  land vehicles, "suggests that Registrant’s vehicles will get the driver the last mile or the last mile on an electric charge. That thought process is too complicated to detract from the inherent or conceptual strength of the mark."

Applicant submitted copies of 16 third-party registrations incorporating the words “Last” and “Mile” for goods and services in the five relevant classes, arguing that LAST MILE exists in a "crowded field" and therefore is weak and deserving of limited protection. The Board, however, deemed these registrations of limited probative value because they do not cover the goods in the cited registration, namely, vehicles. In sum, "[t]he third-party registrations do not detract from the inherent or conceptual strength of Registrant’s mark LAST MILE."

Turing to a comparison of the marks, the Board found the term "Last Mile" to be the dominant part of applicant's mark "in part because Applicant has disclaimed the exclusive right to use the descriptive terms 'Electric' and 'Solutions.'"

In addition, the structure of Applicant’s mark reinforces the term “Last Mile” as the dominant part of the mark ELECTRIC LAST MILE SOLUTIONS because “Electric” and “Solution” modify and describe “Last Mile.” That is, the meaning and commercial impression engendered by the mark is an electricity-based LAST MILE method or process.

Considering the marks in their entireties, the Board found them to be "similar in appearance, sound, connotation, and commercial impression because they share the term 'Last Mile.'"

Turning to the applicant's goods and services, the Office did not submit any evidence to prove the relatedness of the class 9 goods (batteries and chargers) or the class 27 goods (floormats) to registrant's vehicles, nor evidence that they travel in the same trade channels.

As to the applicant's remaining goods, however, its class 12 vehicles overlapped in part with the goods in the cited registration. Applicant's class 35 retail services for electric vehicles are offered through the same trade channels to the same customers as registrant's vehicles, and are inherently related thereto. Likewise, the class 37 repair services are offered through the same channels to the same customers as, and are clearly related to, vehicles.

Finally, applicant argued that because vehicles are expensive, purchasers will proceed with care. However, applicant did not submit any evidence to support its attorney's argument, and it failed to consider the other, less expensive products, or the services, at issue.

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TTABlogger comment: Seems like suggesting that "LAST MILE" is suggestive of electric vehicles is a bit of a stretch. BTW: do you think you could show that batteries and floor mats are related to vehicles?

Text Copyright John L. Welch 2023.