It’s Not Easy Being Green
The U.S. Patent and Trademark Office’s Trademark Trial and Appeal Board refused to register the trademark “Verde” to Verde Power Supply Inc. The Board stated that the suggested trademark, when “used in connection with the company’s goods[,] is only descriptive.” In January of 2010, Verde Power Supply put in an application to register the trademark for “electrical and electronic devices for power supply technology, including power supply units, current-voltage converters, DC converters and electronic power supply circuitry.”
During the registration process, Verde Power Supply failed to provide the examiner with requested information. This information pertained to Verde Power Supply’s business operations. Verde Power Supply stated that if it disclosed its business operations, the company would have revealed trade secrets. Subsequently, the examining attorney asked “whether the goods are energy efficient or environmentally friendly.” Verde Power Supply did not respond to the inquiry, provide any information relating to the question, or mention it on appeal
Answering the question was important because it concerns facts that relate to the descriptiveness. In fact, not complying with a legitimate request for information or materials can be a valid basis for denying registration of the trademark. The Board said that it made “the presumption that the answers to the examining attorney’s questions would be unfavorable to applicant, and that applicant’s goods are both environmentally friendly and energy efficient.”
The Board maintained that the trademark “Verde” would signify to consumers that the electronic devices and other electrical equipment are environmentally friendly. However, not every agreed with the decision to reject the trademark registration. TTAB Judge Seeherman dissented. The Judge stated that the PTO “failed to prove that ‘Verde Power Supply’ is merely descriptive.” Judge Seeherman believes that the Office did not show that “Spanish-speaking purchasers of Verde Power Supply’s goods would understand “Verde” as having the meaning of energy efficient or environmentally friendly, or that those purchasers would immediately understand from the trademark at that the goods have those qualities.” What are your thoughts? Is “Verde” merely descriptive or is Judge Seeherman correct?