Hover Energy, LLC

Trademark Trial and Appeal Board

Sep 6, 2017

No. 86781656 (T.T.A.B. Sep. 6, 2017)

This Opinion is Not a
Precedent of the TTAB

Mailed: September 6, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Hover Energy, LLC
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Serial No. 86781656
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Raymond Van Dyke, Van Dyke Law, for Hover Energy, LLC.

Alex Seong Keam, Trademark Examining Attorney, Law Office 114,
K. Margaret Le, Managing Attorney.
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Before Kuhlke, Lykos, and Larkin,
Administrative Trademark Judges.

Opinion by Larkin, Administrative Trademark Judge:
Hover Energy, LLC (“Applicant”) seeks registration on the Principal Register of
the claimed mark HOVER ENERGY in standard characters (ENERGY disclaimed)
for goods and services identified as “Power generators, namely, wind energy turbines;
wind compressors for use with wind energy turbines,” in International Class 7;
“Technical consultation for others with regard to power generation, namely,
producing wind energy,” in International Class 40; and “Research, development, and
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engineering services for others with regard to power generation, namely, producing
wind energy,” in International Class 42.1
The Trademark Examining Attorney has refused registration in all three classes
under Section 2(e)(1) the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that
HOVER ENERGY is merely descriptive of the goods and services identified in the
application. When the Examining Attorney made the refusal final, Applicant
appealed and requested reconsideration, which was denied. The case is fully briefed.
We affirm the refusals to register.
I. Record on Appeal
The record on appeal includes the following:
● Internet webpages and articles regarding wind energy turbines, including
airborne wind turbines;2
● Internet webpages and articles regarding “hover technology,” objects that
hover above the ground through various means, including magnetic levitation, and
the possible future use of magnetic levitation with respect to buildings and means of
transportation;3
● A Wikipedia entry and articles regarding magnetic levitation;4

1 Application Serial No. 86781656 was filed on October 8, 2015 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), on the basis of Applicant’s allegation of a bona fide
intention to use the mark in commerce for the identified goods and services.

2 February 4, 2016 Office Action; August 10, 2016 Office Action.
3 August 10, 2016 Office Action.
4 August 10, 2016 Office Action.
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● Pages from Applicant’s website at hoverenergy.com;5
● Definitions of the word “hover” from the COLLINS DICTIONARY and the
AMERICAN HERITAGE DICTIONARY;6 and
● Pages from United States Patent No. 7129596 for a “Hovering Wind Turbine,”
which claims a “tethered hovering wind turbine.”7
II. Analysis of Mere Descriptiveness Refusal
Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), prohibits registration
on the Principal Register of “a mark which, (1) when used on or in connection with
the goods of the applicant is merely descriptive . . . of them,” unless the mark has
acquired distinctiveness under Section 2(f) of the Trademark Act, 15 U.S.C.
§ 1052(f).8 A term is “merely descriptive” within the meaning of § 2(e)(1) if it
“‘immediately conveys knowledge of a quality, feature, function, or characteristic of
the goods or services with which it is used.’” In re Chamber of Commerce of the U.S.,
675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012) (quoting In re Bayer
Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007)). See also In
re TriVita, Inc., 783 F.3d 872, 114 USPQ2d 1574, 1575 (Fed. Cir. 2015). The quality,
feature, function, or characteristic of the goods or services “must be conveyed
forthwith with a ‘degree of particularity.’” Goodyear Tire & Rubber Co. v. Continental
Gen. Tire Inc., 70 USPQ2d 1067, 1069 (TTAB 2003) (citations omitted).

5 February 4, 2016 Office Action; August 10, 2016 Office Action.
6 February 4, 2016 Office Action.
7 February 4, 2016 Office Action; August 10, 2016 Office Action.
8 Applicant does not seek registration on the basis of acquired distinctiveness.
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A term “may be merely descriptive even if it does not describe the ‘full scope and
extent’ of the applicant’s goods or services.’” In re Oppedahl & Larson LLP, 373 F.3d
1171, 71 USPQ2d 1370, 1371 (Fed. Cir. 2003) (quoting In re Dial-A-Mattress
Operating Corp., 240 F.3d 1341, 57 USPQ2d 1807, 1812 (Fed. Cir. 2001)). A term need
only describe “one significant attribute, function or property of the goods” or services
to be descriptive. In re Fat Boys Water Sports LLC, 118 USPQ2d 1511, 1513 (TTAB
2016). To refuse registration of Applicant’s claimed mark in Class 7 in its entirety,
the Examining Attorney must show that the claimed mark is merely descriptive of at
least one of the two goods in that class. Chamber of Commerce, 102 USPQ2d at 1219
(citing In re Stereotaxis Inc., 429 F.3d 1039, 77 USPQ2d 1087, 1088-89 (Fed. Cir.
2005)).9
“The determination of whether a mark is merely descriptive must be made in
relation to the goods or services for which registration is sought, not in the abstract.”
Id.; Bayer, 82 USPQ2d at 1831. “In other words, we evaluate whether someone who
knows what the goods [and services] are will understand the mark to convey
information about them.” Fat Boys, 118 USPQ2d at 1515 (citing Duo ProSS Meditech
Corp. v. Inviro Med. Devices Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir.
2012)). This requires consideration of the context in which the mark is used or
intended to be used in connection with the goods or services, and the possible
significance that the mark would have to the average purchaser of the goods or

9 Like Applicant and the Examining Attorney, we will focus on the goods identified as “wind
energy turbines.”
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services in the marketplace. Chamber of Commerce, 102 USPQ2d at 1219; Bayer, 82
USPQ2d at 1831; In re Omaha Nat’l Corp., 819 F.2d 1117, 2 USPQ2d 1859, 1861
(Fed. Cir. 1987).
We must assess the descriptiveness of Applicant’s claimed mark HOVER
ENERGY as a whole, DuoProSS, 103 USPQ2d at 1756, but we begin by determining
whether its individual elements have descriptive significance with respect to the
identified goods and services. Fat Boys, 118 USPQ2d at 1515-16.
Applicant explains the nature and operation of its HOVER ENERGY wind energy
turbines as follows:
Applicant’s apparatuses are complex and very large
terrestrially-bound structures, and the apparatuses are
configured to capture wind, e.g., along with wind
compressors, and channel that ambient wind through a
turbine. Overall, the wind-capture configuration converts
mechanical energies of that ambient wind captured to
electrical energy based upon the rotation of a large rotor
component. Through an understanding of physics, the
rotation of the rotor induces electricity, providing electrical
power. As a further aid in the generation of that power, the
use of powerful opposing magnets in particular
configurations allows the rotor to rotate better, e.g., when
in operation, the opposing magnets are large enough and
strong enough to provide magnetic repulsion sufficient to
levitate or lift the quite heavy rotor very slightly (an inch
or less) so that when rotating the surface of the rotor does
not engage or touch other surfaces, which would cause drag
and friction. This additional opposing magnetic structure
added to the wind capturing configuration allows the
generation of more electricity since the conversion of
mechanical-to-electrical energy is better facilitated.
7 TTABVUE 5.
Applicant acknowledges that each element of the claimed mark provides
information about its turbines: “[T]he first term HOVER very generally indicates that
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hovering is involved, e.g., some form of hovercraft comes to mind,” and that
“something hovers, but nothing in particular is forthwith or immediate,” and
“[l]ooking at the second term ENERGY, this indicates that energy is somehow
involved or produced.” 7 TTABVUE 6. Applicant further acknowledges that “when
consumers think of the word ‘hover,’ they envision floating in the air or otherwise
raised, as noted by the cited evidence.” 7 TTABVUE 15.
Applicant has disclaimed the word “energy,”10 which has self-evident descriptive
significance within the claimed mark.11 Energy is what is produced through the use
of “wind energy turbines,” and wind energy production is the subject matter of the
identified “technical consultation” and “research, development, and engineering”
services.
The word “hover” means “to remain floating, suspended, or fluttering in the air.”
THE AMERICAN HERITAGE DICTIONARY (February 4, 2016 Office Action at 16-17). The
record shows that a feature of some wind energy turbines (including Applicant’s) is
that they produce energy while floating or suspended in the air. Some such turbines

10 In its main brief, Applicant argued that its claimed mark is a unitary mark, “making
disclaimer unnecessary,” and “request[ed] that the term ENERGY not be disclaimed,” 7
TTABVUE 16, but withdrew that request in its reply brief. 10 TTABVUE 4.
11 The Examining Attorney argues that Applicant “has disclaimed the generic wording
ENERGY and therefore, the issue is whether HOVER is merely descriptive of the
goods/services.” 9 TTABVUE 4 n.1. That is an incomplete statement of the relevant inquiry.
If we determine that the word HOVER also has descriptive significance with respect to the
identified goods and services, see Fat Boys, 118 USPQ2d at 1515, we must then “consider the
mark as a whole and ask whether the combination of the component words of Applicant’s
mark ‘conveys any distinctive source-identifying impression contrary to the descriptiveness
of the individual parts.’” Id. at 1516 (quoting Oppedahl & Larson, 71 USPQ2d at 1372).
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are elevated high in the air to take advantage of the stronger winds that blow at
higher altitudes. A photograph of one such turbine is reproduced below:

February 4, 2016 Office Action at 2. The operation of one such hovering turbine is
described in the record excerpts from United States Patent No. 7129596, entitled
“Hovering Wind Turbine.” August 10, 2016 Office Action at 47-55.
Applicant dismisses this evidence, claiming that it “shows various uses of floating
devices that are ‘suspended in air’ or otherwise capture wind energies high up in the
atmosphere,” while “the hover aspect employed [by Applicant] is in the fractions of
an inch or so to just overcome friction – not floating or suspensions in the atmosphere
or other high altitude uses of the like set forth in the evidence.” 7 TTABVUE 12-13.
Applicant “objects to the equating of very lightweight atmospheric floating systems
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to the massive terrestrially-based systems with a small lift done to Applicant’s rotor
in the wind system by large opposing magnets, two quite different and distinct
features and capabilities.” 7 TTABVUE 13. These arguments are unavailing for two
reasons.
First, “[w]hether a mark is merely descriptive is determined in relation to the
goods or services for which registration is sought.” TriVita, 114 USPQ2d at 1575. The
identified goods are broadly described as “wind energy turbines,” without limitation
to Applicant’s self-styled “massive terrestrially-based” ones, and the identified goods
are thus deemed to include all “wind energy turbines,” including those that operate
while airborne. Similarly, both of the identified services are directed to “producing
wind energy,” without limitation to production only through “massive terrestrially-
based” turbines. The record shows that the word “hover” has descriptive significance
with respect to wind energy turbines, and technical consultation and research,
development, and engineering services involving wind energy turbines, because it
describes a feature or characteristic of wind energy turbines that produce energy
while hovering in the air.
Second, the word “hover” has descriptive significance within the proposed mark
even as applied to the subset of the identified goods comprising Applicant’s particular
turbines. Cf. In re Amer. Soc’y of Clinical Pathologists, Inc., 442 F.2d 1404, 169 USPQ
800, 801 (CCPA 1971) (REGISTRY OF MEDICAL PATHOLOGISTS descriptive of
certain claimed services that were implicitly subsumed within service of providing
registry of medical pathologists and of additional claimed services that were
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“supporting, ancillary or auxiliary to the primary function” of applicant’s registry
services); Chamber of Commerce, 102 USPQ2d at 1220 (NATIONAL CHAMBER
descriptive because “substantial evidence supports the TTAB’s determination that
the designated business and regulatory data analysis services are within the scope of
traditional chambers of commerce activities” of “promoting the interests of
businessmen and businesswomen.”). We agree with the Examining Attorney that
“[b]y the applicant’s own description of its goods, the wind turbines hover.” 9
TTABVUE 8. Applicant explains that its turbines use magnetic levitation technology,
which causes “the rotor to raise up and hover by magnetic repulsion,” 7 TTABVUE
12, when its turbines produce energy from wind. 10 TTABVUE 3 (discussing “the
hovering” that is “created by the opposing magnets.”). We further agree with the
Examining Attorney that “[w]hether the wind turbines hover high in the air or a few
inches off the surface using magnetic levitation, the fact remains that the wind
turbines hover, and therefore, [the word HOVER] is descriptive of the goods/services.”
9 TTABVUE 8.12
Having found that both HOVER and ENERGY have descriptive significance with
respect to the identified goods and services, we now “consider the mark as a whole
and ask whether the combination of the component words of Applicant’s mark

12 Applicant argues in its reply brief that the “hovering” of its turbines “runs counter to the
expectations indicated by the various citations [of evidence], i.e., for use at high altitudes.”
10 TTABVUE 3. “[D]escriptiveness is determined from the viewpoint of the relevant
purchasing public.” TriVita, 114 USPQ2d at 1576. According to Applicant, consumers of its
“wind turbine devices and services are sophisticated alternative energy professionals.” 7
TTABVUE 9. Any such consumers would understand “hover” to describe a feature of
Applicant’s particular goods and services other than that they are “use[d] at high altitudes.”
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‘conveys any distinctive source-identifying impression contrary to the descriptiveness
of the individual parts.’” Fat Boys, 118 USPQ2d at 1516 (quoting Oppedahl & Larson,
71 USPQ2d at 1372). “If, instead, each component retains its merely descriptive
significance in relation to the goods [and services], the combination results in a
composite that is itself merely descriptive.” Id.
Applicant acknowledges that “tying the two marks [sic] together [in] HOVER
ENERGY, the combination somehow relates to hovering and energy,” but argues that
“it is a stretch to automatically assume a particular connection between the two
terms, and leap to the conclusions asserted in the Action, e.g., that Applicant’s mark
is directed to the capturing of wind energies in the upper atmosphere instead of firmly
on the ground.” 7 TTABVUE 6. We find that the whole of the claimed HOVER
ENERGY mark is not greater than the sum of its descriptive parts.
“[T]he public’s understanding of a mark can be evidenced by ‘[a]ny competent
source,’” In re North Carolina Lottery, ___ F.3d ____, ___ USPQ2d ____, 2017 WL
3427723, *2 (Fed. Cir. August 10, 2017) (quoting In re Nett Designs Inc., 236 F.3d
1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001)), including “[w]ebsites, publications,
and use ‘in labels, packages, or in advertising material directed to the goods.’” Id.
(quoting In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA 1978)). In
North Carolina Lottery, the Federal Circuit held that the Board had properly
considered the contents of the applicant’s specimen of use (reproduced in pertinent
part below) in finding that the applicant’s claimed mark FIRST TUESDAY was
merely descriptive of lottery cards, scratch cards for playing lottery games, and
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lottery services because it described lottery games offered on the first Tuesday of
every month. Id.

The court held that the “commercial context here demonstrates that a consumer
would immediately understand the intended meaning of FIRST TUESDAY.” Id. at 3.
Pages from Applicant’s website, October 11, 2016 Office Action at 40-42, reflect
the commercial context of Applicant’s use of its claimed HOVER ENERGY mark, and
they demonstrate the relevant purchasing public’s understanding of its meaning. The
banner of Applicant’s website is reproduced below:

HOVER ENERGY is displayed in stylized form with the letter O in HOVER rendered
as a device that appears to rotate while suspended above a horizontal surface. When
viewed in the context of the text that appears beneath the banner (discussed
immediately below), the tagline CHANGE IS IN THE AIR alludes at least in part to
the suspension of the rotating device in the air.
The website’s text describes the features of Applicant’s turbines as follows:
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The website further claims that

Applicant’s website explains verbally, and depicts visually, how its turbines hover in
the air while producing wind energy. Indeed, Applicant touts this feature of its
turbines in claiming that “[o]ur magnetically levitated wind turbine overcomes the
primary challenges facing the wind industry today,” and that Applicant’s
“[m]agnetically levitated turbine has no lubricated parts and low mechanical stress,
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resulting in double the life of a standard turbine.”13 Applicant’s own use of its claimed
HOVER ENERGY mark shows that each component of the claimed mark retains its
descriptive significance when they are combined in the claimed mark, “result[ing] in
a composite that is itself merely descriptive.” Fat Boys, 118 USPQ2d at 1516. HOVER
ENERGY would be understood by consumers of the identified goods and services to
describe immediately an important feature of wind energy turbines, and related
consulting, research, development, and engineering services involving wind energy
turbines, namely, that the turbines produce energy from wind while hovering in the
air.
Applicant argues that “as used in connection with Applicant’s services,14
Applicant’s mark is a suggestive coined term, employs an incongruity, and is not
merely descriptive.” 7 TTABVUE 3. None of these arguments is persuasive.
Applicant argues that HOVER ENERGY “in no way conveys an immediate or
particular impression of the precise nature of Applicant’s products, and is instead a
bit nebulous – not immediately describing a significant feature or characteristic of
the wind turbine devices with the required degree of particularity.” 7 TTABVUE 7.
Applicant posits that “when an average consumer encounters Applicant’s HOVER
ENERGY mark in connection with wind systems, they are left to wonder what, if
anything, might involve hovering, and what is the connection between that hovering

13 Applicant’s emphasis on the benefits of its hovering turbines belies its claim on appeal that
the “‘hover’ aspect is thus not at all the main aspect employed in this endeavor, but is instead
a more ancillary aspect.” 7 TTABVUE 12.
14 As it does here, Applicant sometimes refers in its main brief to both the identified goods
and the identified services as its “services.”
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and energy.” 7 TTABVUE 7. Applicant further argues that the claimed mark is
suggestive because “the primary aspect of the use of the mark is related to wind
energy capture using turbines to convert the captured wind energy to electrical
energy by devices anchored to the Earth.” 7 TTABVUE 12. According to Applicant,
determining the meaning of its claimed mark “clearly requires a multi-stage
reasoning process” because the mark “generally suggests energy somehow involved
with or produced by something that hovers – with zero direct impression of the
particulars for making that so.” 7 TTABVUE 13.
The record shows that the words HOVER and ENERGY each have a specific
descriptive significance with respect to the identified goods and services. Their
descriptive significance when combined in Applicant’s claimed mark is made
apparent on Applicant’s website. As noted above, Applicant claims that the “average
consumers” of its goods and services “are sophisticated alternative energy
professionals.” 7 TTABVUE 9. Accepting that claim at face value, Applicant’s
consumers would readily understand “the connection between th[e] hovering [of its
turbines] and energy,” 7 TTABVUE 7, without being “left to wonder what, if anything,
might involve hovering, and what is the connection between that hovering and
energy.” 7 TTABVUE 7. HOVER ENERGY describes a key feature of Applicant’s
goods, wind energy turbines, without ambiguity or the need for multi-stage
reasoning. Similarly, HOVER ENERGY describes a key feature of Applicant’s
consulting, research, development and engineering services, as wind energy turbines
are the subject matter of those services. See In re Taylor & Francis [Publishers] Inc.,
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55 USPQ2d 1213, 1215 (TTAB 2000) (PSYCHOLOGY merely descriptive of the
subject matter of the applied-for books).
Finally, Applicant argues that the claimed mark is incongruous because “of the
odd juxtaposition of” HOVER and ENERGY. 7 TTABVUE 16. According to Applicant,
“[t]here is neither a straightforward or automatic indication to combine the two terms
[HOVER and ENERGY], nor a clear associated meaning for the juxtaposed
combination,” 7 TTABVUE 16, because “when consumers think of the word ‘hover,’
they envision floating in the air or otherwise raised, as noted by the cited evidence.
However, energy being derived from this hovering does not follow. Energy does not
hover, it is not physical. Hover is a state or position. Energy is a thermodynamic
measure.” 7 TTABVUE 15.
The claimed mark describes the hovering of Applicant’s wind turbines when they
produce energy. There is nothing incongruous about the juxtaposition of the words
HOVER and ENERGY in the claimed mark because it does not evoke “an immediate
association with something unrelated to the goods or services.” In re Calphalon Corp.,
122 USPQ2d 1153, 1163 (TTAB 2017). See In re Tennis in the Round, Inc., 199 USPQ
496, 498 (TTAB 1978) (TENNIS IN THE ROUND for providing tennis courts and ball
machines and offering instruction in tennis found to be incongruous because it
immediately evoked association with well-known phrase “theater in the round,” but
applicant’s tennis facilities were not analogous to those used in such theater); In re
Shutts, 217 USPQ 363, 364 (TTAB 1983) (SNO-RAKE mark for snow removal hand
tool found to be incongruous because while it evoked raking snow, “the idea of a ‘rake’
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or ‘raking’ does indeed sit strange in terms of application to snow and, at best, is
suggestive of a capacity for gathering up snow with an implement or using an action
that hardly fits any of the common conceptions of ‘rake’ or ‘raking.’”); cf. Borden, Inc.
v. Topps Chewing Gum, Inc., 173 USPQ 447 (TTAB 1972) (ICE CREAM incongruous
and registrable for chewing gum); In re Colonial Stores Inc., 394 F.2d 549, 157 USPQ
382, 385 (CCPA 1968) (combination of descriptive terms in SUGAR & SPICE mark
for bakery goods not merely descriptive because mark evoked nursery rhyme “sugar
and spice and everything nice.”).
We find that the record shows that HOVER ENERGY immediately describes a
feature of wind energy turbines, and related consulting, research, development, and
engineering services involving wind energy turbines, namely, that the involved
turbines produce energy from wind while hovering in the air.
Decision: The refusals to register in Classes 9, 40, and 42 are affirmed.