Distribusun LLC

Trademark Trial and Appeal Board

Dec 10, 2014

No. 85912404 (T.T.A.B. Dec. 10, 2014)

This Opinion is Not a
Precedent of the TTAB

Mailed: December 10, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Distribusun LLC
_____

Serial No. 85912404
Serial No. 859124211

_____

Michael D. Hobbs, Jr. and Austin Padgett of Troutman Sanders LLP,
for Distribusun LLC.
Michael A. Wiener, Trademark Examining Attorney, Law Office 108,
Andrew Lawrence, Managing Attorney.
_____

Before Zervas, Wolfson and Gorowitz,
Administrative Trademark Judges.

Opinion by Zervas, Administrative Trademark Judge:
Distribusun, LLC (“Applicant”) seeks registration on the Principal Register of
the following marks:
RADIANT POWER (Application Serial No. 84912404) for “Retail
electricity provider services that allow customers to purchase electricity”
in International Class 35; and

1 Because the marks in the applications are similar, the applications have the same
International Class 35 services, and the records are essentially identical, we consolidate the
appeals. References to the record are to application Serial No. 85912404 unless otherwise
indicated.
Serial Nos. 85912404 and 85912421
- 2 -

RADIANT (Application Serial No. 85912421) for (i) “Retail electricity
provider services that allow customers to purchase electricity” in
International Class 35, and (ii) “Generation of electricity from solar
energy” in International Class 40.

Both marks are in standard character form, and both applications were filed on
April 23, 2013 based upon Applicant’s allegations of a bona fide intention to use the
marks in commerce under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b).
The Examining Attorney has refused registration of Applicant’s marks under
Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that,
when used in connection with Applicant’s services, the marks would be merely
descriptive of such services. When the refusals were made final, Applicant appealed
and requested reconsideration. After the Examining Attorney denied the requests
for reconsideration, the appeals were resumed. We affirm the refusals to register.
A term is deemed to be merely descriptive of goods or services, within the
meaning of Section 2(e)(1), if it forthwith conveys an immediate idea of an
ingredient, quality, characteristic, feature, function, purpose or use of the goods or
services. In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987); and In re
Abcor Development Corp., 588 F.2d 811, 200 USPQ 215 (CCPA 1978). A term need
not immediately convey an idea of each and every specific feature of the applicant’s
goods or services in order to be considered merely descriptive; it is enough that the
term describes one significant attribute, function or property of the goods or
services. In re H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982); and In re MBAssociates,
180 USPQ 338 (TTAB 1973). It is well-established that the determination of mere
Serial Nos. 85912404 and 85912421
- 3 -
descriptiveness must be made not in the abstract, but in relation to the goods or
services for which registration is sought. In re Abcor Development Corp., 200 USPQ
215; In re Vehicle Identification Network, Inc., 32 USPQ2d 1542 (TTAB 1994)
(descriptiveness of mark in an intent-to-use application determined by services
identified in application).
We first consider the RADIANT POWER mark and then consider the RADIANT
mark.
RADIANT POWER
The Examining Attorney maintains that “[t]he mark in this application merely
describes one attribute, feature, quality, characteristic, source or purpose of
applicant’s services that the retail electricity provider services are for the
generation of electricity from solar power” and that there is an “immediate and
direct connection to solar power.” Brief at unnumbered p. 4-6.
Applicant describes its involvement with solar power in its webpages, which
Applicant placed into the record with its response to the first Office action.
Applicant is described as “[d]edicated to transforming the way solar is provided in
this country, DistribuSun is a solar utility that designs, builds and operates the
solar facility on your roof and sells you the power it produces.” Response to first
Office Action, p. 10. Specifically, Applicant submitted promotional material which
demonstrates that its services involve the generation of electricity through solar
power. Thus, Applicant’s “electrical provider services” in its identification of services
include the provision of electricity generated through solar power.
Serial Nos. 85912404 and 85912421
- 4 -
Applicant also introduced an article from the U.S. Department of Energy
website, which discusses the operation of solar electric systems, stating in relevant
part:
Solar cells – the basic building blocks of a PV [photovoltaic] system –
consist of semiconductor materials. When sunlight is absorbed by these
materials, the solar energy knocks electrons loose from their atoms. This
phenomenon is called the “photoelectric effect.” These free electrons then
travel into a circuit built into the solar cell to form electrical current. …
Only sunlight of certain wavelengths will work efficiently to create
electricity. PV systems can still produce electricity on cloudy days, but not
as much as on a sunny day.2

As this passage confirms, electricity is generated through photovoltaic cells
through the light of the sun.
The Examining Attorney introduced, inter alia, the following evidence to support
the refusal to register the proposed mark:
Definitions
● “Radiant Power” defined in the online version of OED, Oxford English
Dictionary, (Oxford University Press 2013), as “the ability to radiate heat, or light;
(Physics) the power of radiated energy; spec. = radiant flux n.”3
● “Radiant” defined as an adjective, accessed on credoreference.com, taken
from Collins English Dictionary (HarperCollins Publishers 2000), providing in
relevant part:
1. sending out rays of light: bright: shining.
3. emitted or propagated by or as radiation: radiated: radiant heat.

2 http://energy.gov/energysaver/articles/small-solar-electric-systems.
3 http://www.oed.com/viewdictionaryentry/Entry/157232.
Serial Nos. 85912404 and 85912421
- 5 -
● “Power” defined in the online version of Merriam-Webster Dictionary
providing, in relevant part:
6 a : a source or means of supplying energy; especially : ELECTRICITY
Uses of “Radiant Power”
From the final Office action:

● A webpage stating “Solar energy is the radiant power produced
by the Sun.”4
● A chapter of a textbook “The physical basis of climate” stating,
“The total radiant power output of the sun is about 3.88 x 1026 watts
which is equivalent to the thermal emission from a black body the size
of the solar photosphere at a temperature of 5,790 K.”5
● A book on renewable resources for academics and researchers in
environmental or electrical power engineering stating, “At the
beginning of this chapter it is noted that the solar constant is a
measure of the radiant power from the sun that is intercepted by the
Earth’s disc.”6
● A webpage stating, “The total radiant power from the sun
falling on one square meter of a surface area can be as high a
1000W/m2 on a clear summer[] day …”7

4 This article, “Pros and Cons of Solar Energy,” By: Jose Juan Gutierrez, was originally
published on January 19, 2012, in www.worldissues360.com/index.php/pros-and-cons-of-
solar-energy-4383/. It was then reprinted in http://www.helium.com/items/2282955-pros-
and-cons-of-solar-energy, as accessed by the Examining Attorney on October 11, 2013.
5 Taken from a university level textbook “Climatic Change and Variability: A Southern
Perspective,” edited by A. B. Pittock, L. A. Frakes, D. Jenssen, J. A. Peterson, J. W.
Zillman, Ch. 2, at 9 (Cambridge University Press 2011). An excerpt available to the
Examining Attorney was located online on October 11, 2013.
6 Taken from a book, “Energy for a Warming World: A Plan to Hasten the Demise of Fossil
Fuels,” written by Alan John Sangster, Ch. 3.6, at 65 (Springer Science+Business Media
2010). An excerpt available to the Examining Attorney was located online on October 11,
2013.
7 This article, “Generating Electricity from the Sun,” by Tankut Yalcinozwas, originally
published in Issue 20 of “The Fountain Magazine on Life, Knowledge, and Belief” (Oct. –
Dec. 1997), drawn from http://www.fountainmagazine.com/Issue/detail/Generating-
Electricity-from-the-Sun, by the Examining Attorney on October 11, 2013.
Serial Nos. 85912404 and 85912421
- 6 -
● An introduction to an article from “Popular Science” titled
“American Power” and stating, “The sun’s radiant power is strongest
in the desert Southwest, where the greatest energy demand – hot
afternoon air conditioning – coincides with peak power supply.”8
● An article entitled “Electric Rates Too High? Can a Home Solar
Power System Help?” stating, “The sun shines down on us providing
free energy for the taking. Changing this radiant power to usable
electric power is what a solar power system does.”9
From the denial of the request for reconsideration:

● An article from Sunday News (Lancaster, Pennsylvania) stating,
“so Jay built the first solar-powered station in the country’s Radio
Lumiere network. The station operated on 50 watts of radiant power
and served four major towns … .”
● US Patent Application No. 12/616683 for “Techniques for
analyzing performance of solar panels and solar cells using infrared
diagnostics” stating, “The operating solar panel or cell is cooler by
several degrees relative to a non-working cell which must dissipate all
if [sic] its absorbed radiant power as heat.”10
● US Patent Application No. 07/234708 for “Composite coverglass
for solar cell,” from the “Background of the Invention,” stating,
“Various semiconductor materials having differing bandgap energies
may be employed to attain power conversion, from radiant power to
electric power, over a band of the solar spectrum; the band may be
increased by use of more of the materials.”11
● Webpages from the research and development corporation MTPV
Corporation stating, “Thermophotovoltaic devices were conceived in

8 Drawn from the caption of a changing infographic produced by XPLANE, a business
design consultancy, appearing with an article by Michael Moyer and Amanda Schupak
published on October 31, 2008, in Popular Science, accessed at http://www.popsci.com/
environment/article/2008-10/american-power-0 by the Examining Attorney on October 11,
2013.
9 This article, “Electric Rates Too High? Can a Home Solar Power System Help?” by Opher
Ganel was originally published on February 6, 2008, in http://www.associatedcontent.com/
article/576489/electric_rates_too_high_can_a_home.html?cat=3. It was reprinted in
http://voices.yahoo.com/electric-rates-too-high-home-solar-power-system-865153.html, as
accessed by the Examining Attorney on October 11, 2013.
10 Issued as U.S. Patent No. 8,373,758 on February 12, 2013.
11 Issued as U.S. Patent No. 4,909,856 on March 20, 1990.
Serial Nos. 85912404 and 85912421
- 7 -
the early 1960’s and consist of a heated black-body which radiates
electromagnetic energy across a gap onto a photovoltaic device which
converts the radiant power into electrical power.”12
Applicant maintains that thought, imagination or perception is required to
arrive at the meaning of the mark determined by the Examining Attorney.
Specifically, Applicant cites to the Examining Attorney’s evidence regarding the
technical process of converting “radiant power” from the sun into electrical power,
which is what Applicant supplies. Applicant concludes:
Because this process requires multiple steps and technologies, there is
no instantaneous connection between the applied-for services provided to
consumers and, at best, the distantly suggestive phrase “Radiant Power.”
… That is, a consumer purchasing the Applicant’s “retail electricity
provider services” for everyday use in their homes will not have an
immediate connection to any type of energy emitted by the sun—energy
that could not be used by consumers like the electricity consumers are
purchasing to power their refrigerators, televisions, and other products.

Brief at 10.
We are not persuaded by Applicant’s argument. Consumers of Applicant’s
services, who include members of the general public, would not likely go through
the technical analysis proffered by Applicant, especially because “radiant power” is
a defined and used term. The evidence reflects that “radiant power” connotes in
relevant part “the power of radiated energy,” which 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. Uses of
“radiant power” in the evidence of record, e.g., the webpage containing the article

12 http://www.mtpv.com/technology.php?tab=2 as accessed by the Examining Attorney on
May 5, 2014.
Serial Nos. 85912404 and 85912421
- 8 -
“Pros and Cons of Solar Energy” (supra at n4) stating “Solar energy is the radiant
power produced by the Sun,” are consistent with this meaning and immediately
associate Applicant’s proposed mark with a feature of the services.
As a second argument, Applicant offers that the proposed mark has a double
entendre. According to Applicant, the word “radiant” has a number of meanings
including “having or showing an attractive quality of happiness, love, health, etc.”
With its request for reconsideration, Applicant introduced the following definition of
“radiant” from Webster’s Online Dictionary, in support of the connotation it
proposes:
1 a : radiating rays or reflecting beams of light
b. : vividly bright and shining : GLOWING
2 : marked by or expressive of love, confidence, or happiness, a radiant smile.
3 a : emitted or transmitted by radiation
b : emitting or relating to radiant heat
In addition, Applicant introduced a passage from the children’s book Charlotte’s
Web with its request for reconsideration, and states, “the spider Charlotte used the
word ‘Radiant’ in describing the positive attributes of her friend Wilber the pig.”
(See excerpt from Charlotte’s Web, stating, “And when his audience grew bored, he
would spring into 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 argues:
With regard to electrical power, the company supplying
that electrical power can likewise strive for its services
and products to be described as radiant. Consumers
clearly have positive feelings about using solar energy
instead of other types of energy. As stated in Applicant’s
Serial Nos. 85912404 and 85912421
- 9 -
Exhibit D, “[s]olar energy is one of the most popular and
least controversial green technologies in the eyes of
consumers.” Moreover, extensive consumer polling of over
one thousand respondents shows [favorable view of solar
energy] … The word “radiant” in the Mark is a play on
words that evokes … general feelings and connotations of
happiness and well-being.
Brief at 12 – 13.
While imaginative, we are not persuaded by Applicant’s argument as it applies
to the proposed mark for the identified services. First, there is no evidence in the
record that purchasers would recognize the meaning offered by Applicant, especially
because the Examining Attorney’s evidence demonstrates that “radiant power” is a
term used in the solar energy field, and radiant power results in the generation of
electricity. Applicant’s argument is therefore based on conjecture. Second, the
asserted double entendre is based on the term “radiant” and not on the proposed
mark, RADIANT POWER. In its brief, Applicant states “As demonstrated in
Applicant’s evidence, ‘Radiant’ is an adjective that describes the word ‘Power.’ That
is, the energy being supplied under the applied-for services is ‘radiant’ in the sense
that the power supplied is the type towards which consumers have positive
sentiments—namely, solar energy.” Applicant’s brief, p. 13. This argument is not
well-taken, especially when the Examining Attorney demonstrated that the
proposed mark, RADIANT POWER, is a defined and used term, and “solar power” is
defined as “power obtained by harnessing the energy of the sun’s rays.”13

13 Accessed at http://www.oxforddictionaries.com/definition/american_english/solar-power.
The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v.
J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ
Serial Nos. 85912404 and 85912421
- 10 -
Applicant also submitted three third-party registrations for marks including the
term “radiant,” which do not contain a disclaimer of “radiant.” These registrations
list goods or services which are considerably different from Applicant’s services and
hence have limited probative value on the question of the asserted mere
descriptiveness of Applicant’s proposed mark. To the extent that the registrations
were offered to suggest a definition of the term “radiant,” they similarly have
limited probative value because RADIANT appears to be arbitrary with respect to
the goods identified in the registrations, and the definition of “radiant” Applicant
relies on, i.e., “marked by or expressive of love, confidence, or happiness, a radiant
smile,” is not applicable to “radiant” in these marks. See, e.g., Registration No.
4497210 for RADIANT RAW FOODS and Design for “Raw fruit-based snack food”
(RAW FOODS disclaimed). Further, Applicant submitted only three registrations,
which are too few to establish the point Applicant desires to make.
Finally, Applicant argues that any doubt as to the descriptiveness of the mark
must be resolved in favor of Applicant, citing In re Shutts, 217 USPQ 363, 365
(TTAB 1983) (finding SNO-RAKE to be suggestive for “a snow removal hand tool).
We have no doubts as to the descriptiveness of RADIANT POWER as used in
connection with Applicant’s services.
In conclusion, the Examining Attorney’s evidence of record supports a
determination that Applicant’s proposed mark, RADIANT POWER, when
considered in relation to the aforementioned services, immediately informs

505 (Fed. Cir. 1983), including online dictionaries that exist in printed format or regular
fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).
Serial Nos. 85912404 and 85912421
- 11 -
prospective purchasers as to a quality, feature or characteristic of Applicant’s
services, namely, that the electricity Applicant provides to its customers derives
from the radiant power generated by the sun. Thus, the Office has met its burden of
demonstrating that Applicant’s proposed mark RADIANT POWER, when used in
connection with the identified services, is merely descriptive.
RADIANT
In discussing the refusal, the Examining Attorney stated:
All of the dictionary definitions, articles, third-party company web site
pages, news articles, and patents [in the record] demonstrate that the
term “RADIANT” would draw an immediate and direct connection to solar
power in the mind of a prospective consumer, [as] the source of the
electricity applicant offers through its electricity retail and generation
services.

Brief at unnumbered p. 6. The Examining Attorney clarifies his position at
unnumbered p. 12 of his brief, stating, that “the term ‘radiant’ does refer to ‘solar’”
and that “the Applicant does supply radiant energy and radiant electrical power.”
Applicant offers many of the same arguments made in the RADIANT POWER
application, including its contention that RADIANT does not immediately call to
mind a feature of Applicant’s services, that there are other non-descriptive
meanings for Applicant’s mark as applied to the services, and that there is a double
entendre with a non-descriptive meaning. As noted earlier in this decision in
connection with Applicant’s immediacy argument, Applicant’s consumers would not
likely go through the technical analysis proffered by Applicant when considering the
nature of the services, especially since “radiant power” is a defined and used term.
In addition, we are not persuaded by Applicant’s double entendre argument as
Serial Nos. 85912404 and 85912421
- 12 -
applied to RADIANT alone because there is no persuasive evidence that Applicant’s
consumers would recognize the asserted double entendre, and “having or showing
an attractive quality of happiness, love, health, etc.” is not a definition that would
likely be applied to electrical power or services relating thereto, even if its source is
solar power. With regard to Applicant’s argument in its reply brief at p. 8 that
Applicant’s mark is not merely descriptive because it has at least one non-
descriptive meaning, Applicant has not persuaded us that there is a non-descriptive
meaning that is relevant to the services at issue in this case. Further, as discussed,
supra, the determination of descriptiveness must be determined in the context of
the goods or services. “That a term may have other meanings in different contexts
in not controlling.” In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828,
1831 (Fed. Cir. 2007).
We note too that “radiant” is an adjective which appears in the term “radiant
power.” Inasmuch as the Examining Attorney’s evidence establishes that “radiant
power” is merely descriptive of a feature of Applicant’s International Class 35
services, “radiant,” as an adjective describing a type of “power,” is also merely
descriptive of services that provide such power. The same holds true for Applicant’s
“generation of electricity from solar energy” services in International Class 40. See
webpage from Tribal Energy and Environmental Information Clearinghouse (“Solar
energy is the radiant (light and heat) energy produced by the sun.”).14 A mark that
consists of a term that is descriptive for a product is considered merely descriptive

14 http://teeic.indianaffairs.gov/er/solar/restech/uses/index.htm, as accessed by the
Examining Attorney on October 11, 2013.
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