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Happy Holidays!

I’ve written extensively before about eco-mark descriptiveness problems (see, e.g., and ) and some strategies for avoiding and overcoming descriptiveness rejections.

Under U.S. trademark law, a mark that is merely descriptive of the goods or services it is being used to market or sell is not registrable on the Principal Register without demonstrating secondary meaning, i.e., that consumers have come to associate the mark with the source of the goods or services.

One strategy I haven’t written about before, which marketers like to use for general purposes but also can occasionally help with descriptiveness problems, is to slightly alter a known term.  This could consist of changing the spelling of a word (e.g., NU-ENAMEL and QUIK-PRINT) or dropping a letter from a word (e.g., SNO-RAKE).

This is the approach SFS Intec (SFS) took for its SOL-R solar fastening system.

SFS filed a U.S. trademark application for SOL-R for goods including “flashing panels, and tiles incorporating metal frames for solar panels,” “metal cantilevered brackets for solar panels,” “ground supports of metal for solar panels,” “non-metal roof cladding and roofing elements for photovoltaic elements,” and “roofing…incorporating solar cells.”

The trademark examining attorney found that SOL-R is simply a novel spelling of the word “solar” and refused registration for being merely descriptive of the goods.  SFS appealed to the U.S. Patent and Trademark Office Trademark Trial and Appeal Board (Board).

In a recent decision, the Board affirmed the refusal and held the SOL-R trademark merely descriptive.

As it starting point, the Board agreed that SOL-R is an alternative spelling of the word “solar” and would be perceived as such by consumers (and pronounced the same way).

The Board found, based on the goods listed in the application and some third-party websites in the record that also used “Sol-r” for solar-related goods, that the trademark is descriptive:

Based on the identification of goods and the excerpts from the third-party websites mentioned above, we find that the proposed mark SOL-R is merely descriptive of a significant feature or characteristic of Applicant’s identified goods.  No imagination is required by a purchaser or user to discern that the mark, when applied to the identified goods, describes products that are used on or in connection with solar panels and installations, and roofing that incorporates solar cells.

The Board gave no weight to the argument that the intentional misspelling of the word “solar” should save the mark and render it distinctive:

A slight misspelling of a merely descriptive word, such as “sol-r,” generally does not turn the descriptive word into an inherently distinctive trademark….Thus, Applicant’s proposed mark SOL-R does not become an inherently distinctive mark by the slight misspelling of the commonly used and understood descriptive term “solar.”

So, if considering a descriptive term as a trademark, better to spell it right and use another strategy.  Or just choose a different mark altogether.

Where most of us just gaze through windows at the world outside, SolarWindow Technologies, Inc. (SolarWindow) and DryWired both look at them and see opportunities for clean tech innovation.  And both are examples of successful navigation of the federal trademark process for protecting their eco-marks.

SolarWindow sees windows as platforms for renewable energy generation.  The Maryland-based company makes a see-through solar energy generating coating technology for windows, particularly for application to tall towers and skyscrapers.

A , written when SolarWindow was called New Energy Technologies, discussed the company’s trouble with its SOLARWINDOW trademark application.

The word mark was rejected by the U.S. Patent and Trademark Office Trademark Trial and Appeal Board (Board) as merely descriptive of the technology.  U.S. trademark law’s prohibits registration of marks that are “merely descriptive” of the goods or services.

The Board found that the definitions of the individual words “SOLAR” and “WINDOW” and the descriptive use of the combined term in the industry rendered the trademark merely descriptive.  The Board noted the effect of the mark on relevant consumers:

[I]t is clear that SOLARWINDOW would immediately inform these consumers that applicant’s goods are used to convert existing windows or create windows that are capable of collecting and generating solar energy.

But SolarWindow’s branding bounced back, with a strategy of incorporating distinctive design elements to its trademark.  The result: diminished descriptiveness problems.  The company received a Notice of Allowance in Application No. 85/673,542 for its design mark with window elements:

A Notice of Allowance was also issued in Application No. 86/014,061 for the company’s design mark with square and circle:

SolarWindow has also filed Application No. 86/615,006 for another updated design mark with block and lines and Application No. 86/615,014 for the block and line design alone.

DryWired, based in Los Angeles, makes liquid nanotechnology for windows that shields against energy loss by reducing heat transfer through the coated windows.

Sold under the brand name Liquid NanoTint, the translucent coating uses a combination of solvent borne tin-oxide based nano-particles and an inorganic adhesive binder.

It’s essentially nanotech insulation, forming a 10-micron thick self-leveling coat that bonds directly to glass and protects the inside of the building from the sun’s UV rays and reduces infrared heat transfer to keep the indoor environment cooler in summer and prevent heat loss in the winter.

DryWired owns Application No. 86/396,246 No. for the trademark LIQUID NANOTINT for “antimony tin oxide based liquid thermal insulation nanocoatings for glass.”  The application easily passed through examination and will be registered shortly.

Should you feel the need to go window shopping for some green window dressing this holiday season, you’ll know who to call.

I recently read an interesting article about Oscilla Power, a Seattle-based company that makes wave power generators.

Oscilla’s wave energy harvesters are based on a phenomenon called magnetostriction, a property of some ferromagnetic materials to change their shape slightly in the presence of a magnetic field.

However, Oscilla applies this process in reverse – called reverse magnetostriction – by applying stresses or strains to the materials so their magnetic characteristics change.  When coupled with a generator that has permanent magnets and wire coils, the process generates electricity.

Oscilla owns a number of patents and pending applications covering its technology, including two related U.S. Patent Nos. 7,816,797, and 7,964,977, entitled “Method and device for harvesting energy from ocean waves.”

These patents are directed to a device (100) for harvesting energy from the oscillations of ocean waves (102).  The core modules of the device (100) include at least one buoy (104) attached to magnetorestrictive elements (106) via tethers (110).

The magnetorestrictive elements (106) are anchored to the seafloor or to another rigid body using anchors or weights (108).

According to the Economist piece, the magnetorestrictive elements are bars made from a strongly magnetic alloy of iron and aluminum.  These bars need be compressed only very slightly (one part in 10,000) to generate electricity.

Even such a tiny compression takes a large force when the bar is made of solid metal, but ocean waves have sufficient power to generate the required force and do so by oscillation.  Oscilla’s generators have two large objects connected by cables:

A buoy floating on the surface of the ocean contains the generating apparatus of alloy bars, magnets and coils, as well as sets of hydraulic rams which can squeeze the bars.  The cables connect the buoy to a heave plate maintained in a stationary position.

As the buoy rises and falls with the waves at the surface and the heave plate stays still, the tension on the cables increases and decreases.  The changing tension drives the rams and produces electricity.

Because the generators operate on changing tension, they don’t need to employ lot of moving parts and should therefore be more reliable than conventional wave power generators.

After a successful trial of a four-meter prototype last year, Oscilla hopes to build a full-scale device by 2018.