Powin Energy Corporation

Trademark Trial and Appeal Board

Apr 23, 2021

87873439 (T.T.A.B. Apr. 23, 2021)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Hearing: April 7, 2021 Mailed: April 23, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
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In re Powin Energy Corporation
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Serial No. 87873439
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Keven M. Hayes of Klarquist Sparkman LLP,
for Powin Energy Corporation.
Daniel Travis Bice, Trademark Examining Attorney, Law Office 128,
Travis Wheatley, Managing Attorney.
_____

Before Wolfson, Adlin and Lebow,
Administrative Trademark Judges.

Opinion by Lebow, Administrative Trademark Judge:
Applicant, Powin Energy Corporation, seeks registration of the term STACK, in
standard characters, on the Principal Register for “Modular energy storage system
for managing electrical power comprised of battery cells and an electronic regulator
that monitors and controls the charging and discharging of rechargeable batteries”
in International Class 9 (“the Application”).1

1 Application Serial No. 87873439 was filed on April 11, 2018 based on Applicant’s allegation
of first use anywhere and in commerce on July 1, 2017 under Section 1(a) of the Trademark
Act, 15 U.S.C. § 1051(a).
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The Trademark Examining Attorney refused registration under Section 2(e)(1) of
the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that the mark is merely
descriptive of the identified goods. When the refusal was made final, Applicant
requested reconsideration, which was denied. Applicant then filed an appeal to this
Board; the appeal has been fully briefed; and an oral hearing was held.
We affirm the refusal.
I. Applicable Law
Section 2(e)(1) of the Trademark Act 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 been shown to have
acquired distinctiveness under Section 2(f) of the Trademark Act, 15 U.S.C. § 1052(f).
A mark is “merely descriptive” within the meaning of Section 2(e)(1) “if it immediately
conveys information concerning a feature, quality, or characteristic of the goods …
for which registration is sought.” In re N.C. Lottery, 866 F.3d 1363, 123 USPQ2d 1707,
1709 (Fed. Cir. 2017) (citing In re Bayer AG, 488 F.3d 960, 82 USPQ2d 1828, 1831
(Fed. Cir. 2007)).
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 to be merely descriptive;
rather, it is sufficient 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); In
re MBAssociates, 180 USPQ 338 (TTAB 1973). Whether a mark is merely descriptive
is “evaluated ‘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
Serial No. 87873439
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have to the average purchaser of the goods because of the manner of its use or
intended use,’” In re Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d
1217, 1219 (Fed. Cir. 2012) (quoting Bayer, 82 USPQ2d at 1831), and “not in the
abstract or on the basis of guesswork.” In re Fat Boys Water Sports LLC, 118 USPQ2d
1511, 1513 (citing In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA
1978)).
We ask “whether someone who knows what the goods … are will understand the
mark to convey information about them.” Real Foods Pty Ltd. v. Frito-Lay N. Am.,
Inc., 906 F.3d 965, 128 USPQ2d 1370, 1374 (Fed. Cir. 2018) (quoting DuoProSS
Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1757
(Fed. Cir. 2012) (internal quotation omitted)). A mark is suggestive, and not merely
descriptive, if it requires imagination, thought, or perception on the part of someone
who knows what the goods are to reach a conclusion about their nature from the
mark. See, e.g., Fat Boys, 118 USPQ2d at 1515.
In determining how the relevant consuming public perceives Applicant’s proposed
mark in connection with its identified goods, we may consider any competent source,
including websites and webpages, newspaper articles and publications, and
Applicant's own advertising material and explanatory text. See In re N.C. Lottery,
866 F.3d 1363, 123 USPQ2d 1707, 1709-10 (Fed. Cir. 2017); In re Nett Designs, Inc.,
236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (citing In re Bed & Breakfast
Registry, 791 F.2d 157, 229 USPQ 818, 819 (Fed. Cir. 1986)); TRADEMARK MANUAL OF
EXAMINING PROCEDURE (“TMEP”) § 1209.01(b) (October 2018).
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II. Discussion and Analysis
A. Dictionary Evidence
The Examining Attorney provided a definition of STACK as “an orderly pile or
heap.”2 We take judicial notice that the same dictionary reference defines STACK,
the verb, as “to arrange in a stack [referring to the noun]: PILE.”3 The Examining
Attorney also provided definitions for the word “modular,” the adjective used in
Applicant’s identification of goods to characterize Applicant’s energy storage system,
as being “of a module” or “designating or of units of standardized size, design,
construction, etc. that can be arranged or fitted together in a variety of ways.”4 We
take judicial notice that a “module” is “any in a series of standardized units for use
together.”5
In reliance on definitions of the words “stack” and “modular” and the evidence
discussed below, the Examining Attorney argues that STACK is descriptive of
Applicant’s “modular energy storage system for managing electrical power comprised
of battery cells and an electronic regulator that monitors and controls the charging
and discharging of rechargeable batteries.” In particular, he asserts that STACK is
descriptive “because of the ability of consumers to arrange the goods in a stacked

2 August 1, 2018 Office Action, TSDR 8 (Merriam-Webster Dictionary).
3 https://www.merriam-webster.com/dictionary/stack (accessed April 20, 2021). The Board
may take judicial notice of dictionary definitions from online sources when the definitions
themselves are derived from dictionaries that exist in printed form or have regular fixed
editions. See In re White Jasmine LLC, 106 USPQ2d 1385, 1392 n.23 (TTAB 2013); In re Red
Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006).
4 August 1, 2018 Office Action, TSDR 7 (Merriam-Webster Dictionary).
5 https://www.merriam-webster.com/dictionary/module (accessed April 20, 2021).
Serial No. 87873439
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manner.”6
We find that the dictionary evidence, particularly in light of Applicant’s statement
during prosecution that “[c]onsumers can arrange Applicant’s goods in a manner that
is appropriate to their situation and specific needs,” supports a finding that the term
STACK is merely descriptive of a feature, or function, or characteristic of the
identified goods. Applicant’s energy storage system is “modular,” which means it, or
its battery cells (which may be referred to as “modules”) are or can be arranged in
modular fashion, i.e., as in a “stack.” In other words, STACK describes the stackable
feature, function, and/or characteristic of Applicant’s goods.
B. Industry Use Evidence
According to the Examining Attorney, “[t]he term ‘BATTERY STACK’ is used
often to describe multiple battery cells which have been stacked or otherwise
arranged into a series of connected battery cells.” In support, he made of record
webpage printouts from a number of third-party websites that “used the wording
‘STACK’ descriptively to refer to the function or use of energy storage systems in this
way.”7
For example, a technical article from Analog Devices (analog.com) titled “Battery
Stack Monitor Maximizes Performance of Li-Ion Batteries in Hybrid and Electric
Vehicles” explains that “[i]n a battery stack, single cells can be arranged in parallel
and in series in order to achieve the required capacity and operating voltage.”8 The

6 8 TTABVUE 9 (Examining Attorney’s Brief).
7 Id. at 6.
8 April 7, 2020 Final Office Action, TSDR 10 (emphasis added).
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article, which also refers to battery stacks as simply “stacks,” further explains that
“[e]ven small differences lead to different charge or discharge levels, with the weakest
cell in the stack disproportionately affecting overall stack performance.”9 To solve
this problem as it affects electric vehicles, “[t]o accommodate the large quantity of
cells required . . . batteries are often divided into modules, and distributed throughout
available spaces in the vehicle.” The company purports to have “developed a family
of battery monitors capable of measuring up to 18 series connected cells” in which
“[m]ultiple devices can be connected in series, permitting simultaneous cell
monitoring of long, high voltage battery stacks.”10 A representative diagram
depicting such an arrangement is shown below:11

Another technical article from the same website, titled “Active Cell Balancer
Extends Run Time and Lifetime of Large Series-Connected Battery Stacks,” explains

9 Id. (emphasis added).
10 Id. (emphasis added).
11 Id. (emphasis added).
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that “[l]arge stacks of series-connected battery cells are increasingly used to power
electric vehicles or bank energy in wind and solar power systems.”12 “Typically,” it
asserts, “the stack is treated by the charge-discharge system as a single battery—
cells are charged and discharged as a series stack and the state of charge (SOC) of
each cell depends on its ability to store and maintain charge.”13 The following
depiction of a “stack” is provided:14

National Instruments (sine.ni.com) offers a third-party monitoring device, the WF
3169 Battery Stack Monitor Module Driver by WireFlow AB, which allows
consumers to “monitor every cell in a long string of [up to 24] series-connected cells,”
purportedly “making the module ideal for accurately monitoring large battery
stacks.”15
Cradle to Cradle (c2c-centre.com) offers a third-party “Cradle-to-Cradle

12 Id. at 13 (emphasis added).
13 Id. (emphasis added).
14 Id.
15 Id. at 8.
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Certified™” “battery stack for long-duration application,” the Aquion Energy Battery
Stack, which is purportedly “the first cost-effective energy storage solution that is
high-performance, safe, sustainable, and non-toxic,” and which “can be connected in
series or parallel for a wide range of system configurations.”16 A photo of the battery
stack system, which is arranged in a stack, is shown below:17

16 Id. at 7 (emphasis added). The domain name for this source uses the term “centre,” which
we take judicial notice of is considered a “chiefly British spelling of CENTER,” and could
signify that it is a foreign website. See at https://www.merriam-
webster.com/dictionary/centre (accessed April 22, 2021). Nevertheless, the website is in
English and accessible to the U.S. public, thus giving it some probative value, especially
because this article and others in the record are scientific or technical in nature. See e.g., In
re Bayer AG, 488 F.3d 960, 82 USPQ2d 1828, 1835 (Fed. Cir. 2007) (“information originating
on foreign websites or in foreign news publications that are accessible to the United States
public may be relevant to discern United States consumer impression of a proposed mark”);
In re Well Living Lab Inc., 122 USPQ2d 1777, 1781 n.10 (TTAB 2017), aff’d per curium, 749
Fed. Appx. 987 (Fed. Cir. 2018) (“Various factors may inform the probative value of a foreign
website in any given case, such as whether the website is in English (or has an optional
English language version), and whether the nature of the goods or services makes it more or
less likely that U.S. consumers will encounter foreign websites in the field in question.”); In
re Remacle, 66 USPQ2d 1222 n. 5 (TTAB 2002) (finding use of foreign website information
acceptable as Internet is a widely-available resource and noting that “it is reasonable to
assume that professionals in … computers, telecommunications and many other fields are
likely to utilize all available resources, regardless of country of origin or medium.”).
17 Id.
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An abstract from a journal article titled “Stack Design Considerations for
Vanadium Redox Flow Batter” from Springer Link (link.springer.com) providing an
analysis of multi-cell battery stacks explains that “[t]he design of … stacks is
complicated by the presence of a number of parameters that can influence the
performance.”18 In that study, “[a] short stack of four cells [was] prepared by
connecting them in series electrically.”19 It was shown that “increasing cell size
increases the gravimetric and volumetric efficiency of the stack,” and “[f]or large-
powered stacks, further reduction in pressure drop can be achieved by making
deeper grooves in the serpentine channels.”20
Siemens’ website (MDX2.PLM.Automation.Siemens.com) depicts a diagram,
shown below, of “84 Battery Cells in Stack Pattern” that shows two sets of 42 battery
cells connected in series, which connect in parallel with another of the same to create
an 84-cell battery stack:21

18 Id. at 6 (emphasis added).
19 Id (emphasis added).
20 Id (emphasis added).
21 Id. at 12 (emphasis added).
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An article from Electronic Design (electronicdesign.com) titled “Ideas for Design
[-] Low Power Circuit Measures Multiple Temperatures in a Battery Stack” explains
that “High-voltage, multi-cell, series-stacked batteries are the power source for
electric vehicles, hybrid electric vehicles, electric bikes, power tools, and many other
devices,” and that “Lithium-ion (Li-ion) batteries, because of their high energy
density, are a popular choice for these stacks. However, it is critically important for
these high-energy battery stacks to have a good battery-management system” to
avoid “thermal runaway” and “battery explosion.”22
And an article from EE News Europe (eenewseurope.com) about Panasonic’s
development of “a new battery management technology that measures a battery’s
electrochemical impedance,” asserts that such technology “is expected to be applied
to various devices that use lithium-ion battery modules with many battery cells
stacked in series and to future vehicles.”23
In addition, the Examining Attorney refers to an article about Applicant, from
Energy Storage News (energy-storage.news), titled “Powin Energy to deliver
Canada’s largest energy storage rollout at 52.8MWh,” which explains that “[t]he
foundation of this project will be [Applicant’s] modular Stack 140 – which is a
modular, purpose-built 140kWh battery array that easy scales up to multiple

22 Id. at 5 (emphasis added).
23 Id. at 14 (emphasis added). Applicant did not object to this article, which is a European
publication. Nevertheless, because the article is in English and accessible to the U.S. public,
we give it probative value, especially because this article and others in the record are
scientific or technical in nature. See note 16 infra.
Serial No. 87873439
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megawatt applications.”24 The article features a picture of Applicant’s modular
storage system batteries arranged in a stack:25

Summarizing the evidence, the Examining Attorney argues that
[W]ithin the context of energy storage systems such as multi-celled
battery stacks, the wording “STACK” describes a type of energy storage
system, which is used and functions by arranging multiple battery cells
in a series and in parallel with other series of battery cells. Collectively,
this arrangement of battery cells is referred to as a “BATTERY STACK”
or simply a “STACK” for short. As such, for consumers familiar with the
applicant’s goods, the wording “STACK” will be understood as
immediately describing the manner in which the applicant’s goods
function and are used, specifically as a series of battery cells arranged
and connected in a series known as a “STACK.”26

Applicant, in response, argues that “none of the evidence … shows that STACK is
used to refer to a system for managing electrical power. … [T]he Examiner provided
nine exhibits that allegedly use the word ‘stack’ to describe a way that batteries can
be arranged. But none of those exhibits use the word ‘stack’ to describe a ‘system for

24 November 2, 2018 Response to Office Action, TSDR 15-16 (emphasis added).
25 Id. at 15.
26 8 TTABVUE 9 (Examining Attorney’s Brief).
Serial No. 87873439
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managing electrical power’ as identified by Applicant.”27
Applicant’s argument is misplaced, however, because as noted above, “[i]t is not
necessary that a term describe all of the purposes or functions or characteristics or
features of a product in order that it may be considered to be merely descriptive; it is
enough if the term describes a significant function or attribute or property of the
goods.” In re H.U.D.D.L.E., 216 USPQ at 358 (citing In re MBAssociates, 180 USPQ
at 338).
The Application originally identified a “modular energy storage system for
providing electrical power.”28 However, the Examining Attorney rejected that
identification on the basis that the wording “modular energy storage system … does
not make clear the nature of the specific systems” and required Applicant to amend
the identification by listing the systems parts or components, “referencing the
primary parts or components of the system first.”29 Applicant did so, listing “battery
cells” as the first of two components comprising its system. Therefore, “battery cells”
are the primary components of Applicant’s modular energy storage system.30
Applicant also argues that “the term ‘stack’ evokes an array of products, ranging
from food containers to chairs.”31 As such, the mark STACK “is at most suggestive as
it evokes a range of different products and not merely those identified in the

27 4 TTABVUE 10 (Applicant’s Brief).
28 April 1, 2018 Application, TSDR 1.
29 August 1, 2018 Office Action, TSDR 3.
30 November 2, 2018 Response to Office Action, TSDR 6.
31 4 TTABVUE 14 (Applicant’s Brief).
Serial No. 87873439
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application of goods.32 According to Applicant, “a consumer viewing Applicant’s
trademark STACK on Applicant’s product would be required to think about what the
product is, realize that the product is an electrical management system, then realize
that the product can contain batteries that might be arranged in an orderly fashion
that the consumer might think of as a stack.”33 In other words, “a consumer would
not immediately believe that the product is a stack – i.e., “an orderly pile or heap.”34
Applicant points to the following image of “Applicant’s STACK marked product” to
illustrate this point:
35
Besides the rather important point that this image depicts a stack and labels it a

32 Id.
33 Id. at 13.
34 Id. at 12-13.
35 August 11, 2020 Request for Reconsideration, TSDR 8.
Serial No. 87873439
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“stack,” “[t]he question is not whether someone presented with only the mark could
guess what the goods … are. Rather, the question is whether someone who knows
what the goods … are will understand the mark to convey information about them.”
Earnhardt v. Earnhardt, Inc., 864 F.3d 1374, 123 USPQ2d 1411, 1413 (Fed. Cir.
2017) (citing DuoProSS, 103 USPQ2d at 1757). Here, someone who knows what the
goods are—systems whose primary components are battery cells—will immediately
understand the term STACK to convey information about them. Applicant’s focus on
the “range of different products” which could be evoked by “stack” is thus misplaced.
In re Chopper Industries, 222 USPQ 258, 259 (TTAB 1984) (“It is well settled that so
long as any one of the meanings of a term is descriptive, the term may be considered
to be merely descriptive.”). See also, In re IP Carrier Consulting Group, 84 USPQ2d
1028, 1034 (TTAB 2007); In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979).
In sum, we find the third-party use evidence, as well as Applicant’s own use,
probative to show that a “battery stack,” or simply “stack” in shortened form, often
refers to multiple battery cells (or modules), arranged in a series and in parallel with
other battery cell series.
C. Cases Relied on by Applicant
Applicant relies on several cases that found the subject marks were suggestive
rather than merely descriptive of the goods or services at issue, including In re
Realistic Co., 440 F.2d 1393, 169 USPQ 610 (CCPA 1971) (finding CURV’ “suggestive
of a possible result of the intended use” of the applicant’s permanent wave curling
solutions or the purpose for which such goods are to be used”); In re C.J. Webb, Inc.,
182 USPQ 63 (TTAB 1974) (finding CRC BRAKLEEN and Design suggestive of end
Serial No. 87873439
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result of using a chemical for cleaning and degreasing automobile brake parts); In re
Recovery, Inc., 196 USPQ 830 (TTAB 1977) (find RECOVERY suggestive of desired
end results of the applicant’s services providing group therapy in the form of self-help
aftercare following psychiatric or other professional counseling); and In re Nalco
Chem. Co., 228 USPQ 972 (TTAB 1986) (finding VERY-CLEAN suggestive of the end
result of chemical anti-fouling additives in refineries).
These decisions are consistent with the proposition that a proposed mark can be
found suggestive if it does not immediately convey information about an ingredient,
quality, characteristic, function, purpose, use, feature, property, or part of the goods
or services in connection with which it is used. In this case, however, the term STACK
falls on the other side of the line. A consumer would immediately perceive that a
modular battery system is stacked because modular and other battery systems often
are, and the array is often referred to as a “stack.” That is why STACK, as shown by
the evidence, is commonly used by third parties in the energy storage and battery
industries.
III. Conclusion
In sum, we find that the dictionary and third-party use evidence of record, along
with Applicant’s own use, establishes that the term STACK immediately conveys
information concerning a function, feature, or characteristic of Applicant’s “modular
energy storage system for managing electrical power comprised of battery cells and
an electronic regulator that monitors and controls the charging and discharging of
rechargeable batteries.” Specifically, the term immediately conveys that a primary
Serial No. 87873439
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component of the goods, battery cells, are stacked or stackable.36
Decision: The refusal is affirmed.

36 The Examining Attorney also made of record a number of third-party registrations of
marks that include the word STACK (or STAK), where STACK was disclaimed, to further
demonstrate that the term is descriptive. Applicant introduced several other third-party
registrations to demonstrate the opposite. However, none of the third-party registrations
cover similar goods, albeit most identify goods that share the function, feature, or
characteristic of being stackable. It is well-established that third-party registrations for
similar marks and similar goods may be relevant to “show the sense in which … a mark is
used in ordinary parlance.” In re Guild Mort. Co., 2020 USPQ2d 10279, *3 (TTAB 2020)
(consideration of conceptual weakness appropriate to consider in context of the similarities
of the marks); see also Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New
Millennium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015). In view
of our holding that the proposed mark is merely descriptiveness based on the dictionary and
third-party use evidence of record, we need not consider whether the identified goods in those
registrations are similar—by virtue of their shared similar function, feature, or
characteristic, of being stackable—to Applicant’s goods, and thus have probative value.