Are you able to identify BlueCar from these two images?
How about green, do you see a green car here?
And, no, we’re not testing for envy or color blindness.
Easy, right? Not so fast . . . .
Well, you might be surprised to learn, BlueCar is not just the blue-colored car on the right, actually, it’s both. And, both happen to be "green" too, but you wouldn’t realize that until firing them up and noticing that neither happens to consume gasoline or emit any exhaust.
That’s right, BlueCar is a trademark and brand of "environmentally friendly" (i.e., "green") electric powered land vehicles, not merely an immediate description of one of the available car colors. So, this is yet another example of how fine the line can be drawn between the descriptive and suggestive categories on the all-important trademark Spectrum of Distinctiveness.
You may recall, last year, Sharon documented in her "Yellow + Blue =" post how the U.S. Trademark Office is more consistently viewing the term GREEN as not only descriptive of things colored green, but also immediately descriptive of "environmentally friendly" features of goods and services. Armed with this knowledge, surely GREENCAR would be considered merely descriptive of "environmentally friendly" electrically powered land vehicles, whether or not they happen to be colored green.
Now, it appears that the word BLUE is emerging as a very nice suggestive alternative to the word GREEN, when naming products or services having "environmentally friendly" benefits. At least, for the time being.
Recently, Bolloré, a French company, sought to federally register BLUECAR as a trademark for "electrically powered land vehicles" among other products, but the mark was refused registration as merely and immediately descriptive because the goods covered in the application were considered broad enough to encompass blue-colored electric cars. On appeal, just two weeks ago, a divided panel (2-1) of the Trademark Trial and Appeal Board (TTAB) reversed the descriptiveness refusal, instead finding BlueCar immediately protectable and suggestive of the "cleaner, bluer skies" that might result from the use of "environmentally friendly" electric vehicles, even if some of the cars offered under the BLUECAR brand happen to be, well, colored blue too.
Since Bolloré represented that it planned to offer electric cars in a variety of colors and not limit itself to the blue color of its original prototype vehicle, and because "blue" is "the pure color of a clear sky," the TTAB ruled that consumers were more likely to view BLUECAR as "an arbitrary mark, or perhaps as a mark suggesting a clean, blue sky, that is, that the electric-powered vehicles are environmentally friendly." The TTAB also was persuaded by the suggestiveness of the word BLUE given its appearance in a variety of third party energy and conservation websites, including pureblueenergy.com, blueenergygroup.org, bluesquareenergy.com, blueskyenergyinc.com, and bluemoonfund.org, among others.
Hat tip to John Welch of the TTABlog for flagging down this interesting vehicle case. John goes on to reasonably ask: "If BLUECAR has two meanings: color and ‘environmentally friendly,’ aren’t both meanings merely descriptive? Should the refusal be alternatively affirmed on that basis?"
I’d say no. I think the majority got it right. From my perspective, and based on the evidence of record, while the word GREEN immediately and clearly describes an "environmentally friendly" product benefit, the word BLUE does not, at least at present, it is inherently more creative than GREEN in this context, and, as such, it requires at least some imagination, thought, and/or perception to understand a connection between the word BLUE and "environmentally friendly" product benefits, making it suggestive, not merely descriptive.
The moral of this story: If you are naming goods or services that have "environmentally friendly" attributes, and if you are possessed to include a color term in the name, BLUE is a much better choice than GREEN. At least for the time being, BLUE is being treated as suggestive of "environmentally friendly" features, whereas, GREEN is being treated as merely and immediately descriptive.
Does this all change when BLUE becomes GREEN, i.e., if and/or when "environmentally friendly" begins to appear in dictionary definitions for the word BLUE?
Probably, but until then, what does BlueCar mean to you?