POWER CAPSULE and POWER TUNNEL Merely Descriptive of Energy Storage Containers, Says TTAB

The Board affirmed Section 2(e)(1) refusals of the proposed marks POWER CAPSULE and POWER TUNNEL, finding the terms merely descriptive of the identified goods: Compressed air containers made of metal for energy storage; water and gas containers made of metal for energy storage; Electricity generators, Compressed air, water, and gas containers for energy storage being an integral component of alternative energy generation power plants. In re Power8 Tech Inc., Serial Nos. 97455448 and 97455459 (June 13, 2025) [not precedential] (Opinion by Judge Elizabeth A. Dunn).

POWER and CAPSULE: Examining Attorney Gisele Agosto Hincapie submitted dictionary definitions of the word POWER as well as copies of 17 third-party registrations with disclaimers or Section 2(f) claims for the word "power" used with energy generation or storage. As to CAPSULE, in addition to a dictionary definition, the Examining Attorney pointed to applicant's statement the goods consist of "sealed containers," as well third-party pages describing patents indicating that “capsule” is a shape used in the energy industry.

POWER and TUNNEL: The record included a webpage describing how tunnels are used in pumped storage hydro plants, together with applicant's concession that "the goods do and will consist of tunnels that allow for the generation of power."

The terms CAPSULE and TUNNEL are merely descriptive of a main feature of Applicant’s goods – the containers and/or tube-shaped structures which combine water and air so as to create the pressure necessary to create and store power.

The Board rejected Applicant’s argument and evidence that each term also has alternate non-descriptive definitions, pointing out that descriptiveness is not viewed in a vacuum but “is considered in relation to the particular goods for which registration is sought, the context in which it is being used, and the possible significance that the term would have to the average purchaser of the goods because of the manner of its use or intended use."

The Combined Terms: Applicant’s promotional material described POWER CAPSULE as technology incorporated in Applicant’s compressed air pumped-storage hydroelectricity energy storage system, which combines energy generation and energy storage, leading the Board to conclude that the combined term POWER CAPSULE is merely descriptive of Applicant’s goods.

Applicant argued, without success, that the term POWER CAPSULE is not merely descriptive because it does not have a well-defined meaning in the energy industry; because the combination creates a double entendre; and because similar marks combining POWER and a term for a container (POWERBOX and POWER PUCK) have been registered. First, the Board pointed out that "the fact that an applicant may be the first and only user of a merely descriptive designation does not justify registration if the only significance conveyed by the term is merely descriptive.” Second, although POWER CAPSULE in the abstract has more than one meaning (e.g., health supplements) the relevant consumer of applicant’s goods will perceive POWER CAPSULE as connoting both generators and containers for power and health supplements. And third, each case must be decided on its own record.

As to POWER TUNNEL, the Board was unmoved by the argument that POWER TUNNEL is not merely descriptive because a “consumer would not be able to guess what the mark is used for,” and “similarly situated third party registrations demonstrate that marks containing the terms ‘POWER’ and a generally descriptive structure are registrable on the Principal Register." As to the first argument, as discussed above, mere descriptiveness is not a guessing game; the proposed mark must be considered in the context of the identified goods. As to the second, the Board pointed out again that each case must be decided on its own record.

In sum, we find that prospective purchasers of the identified goods in Class 6, 7, and 11 who encounter the terms POWER CAPSULE and POWER TUNNEL will be immediately informed that Applicant’s goods involve generating and storing energy. The terms are merely descriptive of the goods.

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TTABlogger comment: The double entendre argument is rarely successful. Here's a case where it worked: In re LedgerDomain LLC

Text Copyright John L. Welch 2025.