Friday, December 12, 2014

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 In re Distribusun LLC, Serial Nos. 85912404 and 8591242 (December 10, 2014) [not precedential].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.

Read comments and post your comment here

TTABlog note: So, how did you do? Note applicant's name, DistribuSUN !

Text Copyright John L. Welch 2014.


At 7:01 AM, Anonymous Miriam Richter, Fort Lauderdale, FL said...

I have often wondered how many people have to "get" the double entendre for TMEP 1213.05(c) to apply. To me, this case takes on a new twist - I "got" the non-descriptive meaning without knowing the goods or service but then, in context, lost it and then thought they might be a solar energy company (for the first mark only). Is this more analogous to a initial interest confusion situation?
I think they might have stood a better chance if they had only applied for the first listed mark.

At 4:30 PM, Anonymous Anonymous said...

I agree. What if they had just filed for RADIANT and carefully described the services to avoid this issue if possible?

I always try to avoid using the generic term in a mark if possible like PEPSI not PEPSI COLA, but then people point out that a mark like Coca-Cola, the world's most famous brand, does exactly that, and obviously does not work as COCA alone.

Of course the client would have to use the mark as RADIANT alone or they could get refused because the examiner would say POWER is an integral part of the mark and specimen refused.

So if they try that now, would a new examiner still throw this case right back in their face and now they are stuck?

At 4:32 PM, Anonymous Anonymous said...

Oops. Never mind. I looked it up and see that they did file as RADIANT alone as well.

There were two separate appeals. The Board stuck it to them on both.

Perhaps if they had done RADIANT first?

At 11:04 AM, Anonymous Miriam Richter, Ft. Lauderdale, FL said...

Examiners often reject specimens because they feel that applicant has to include more and I have been successful in overcoming this objection by citing to the BERG case from 1969! See In re Berg Electronics, Inc., 163 U.S.P.Q. 487, 1969 WL 9165 (T.T.A.B. 1969).


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