Major League Baseball Properties, Inc.

Trademark Trial and Appeal Board

Mar 2, 2005

No. 78183355 (T.T.A.B. Mar. 2, 2005)

Mailed: March 2, 2005
PTH

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Major League Baseball Properties, Inc.
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Serial Nos. 78183355 and 78183381
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Mary L. Kevlin and Heather L. Jensen of Cowan, Liebowitz &
Latman, P.C. for Major League Baseball Properties, Inc.

Scott Baldwin, Trademark Examining Attorney, Law Office 112
(Janice O’Lear, Managing Attorney).
_______

Before Hanak, Hairston and Chapman, Administrative
Trademark Judges.

Opinion by Hairston, Administrative Trademark Judge:

Major League Baseball Properties, Inc. has filed
applications to register the marks THE BASEBALL CHANNEL1 and
MLB TV THE BASEBALL CHANNEL2 for, in each case:
entertainment services, namely, baseball games,
competitions and exhibitions rendered live,
through broadcast media including television and
radio and via a global computer network or a

1 Serial No. 7818355, filed on November 8, 2002, based on an
allegation of a bona fide intention to use the mark in commerce.
The word BASEBALL is disclaimed apart from the mark as shown.
2 Serial No. 78183381, filed on November 8, 2002, based on a bona
fide intention to use the mark in commerce. The terms TV and
BASEBALL are disclaimed apart from the mark as shown.
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF
THE TTAB
Ser Nos. 78183355 and 78183381
2
commercial on-line service; providing, producing
and distributing programming for others in the
nature of baseball games, competitions and
exhibitions and providing information in the
field of sports and entertainment, all through
broadcast media including television and radio
and via a global computer network or a commercial
on-line service; [and] education services in the
nature of baseball skills instruction.

In application Serial No. 78183355 applicant has
appealed the trademark examining attorney’s final refusal
to register the mark THE BASEBALL CHANNEL under Section
2(e)(1) of the Trademark Act, 15 U.S.C. §1052(e)(1), on the
ground that as applied to the recited services, the mark is
merely descriptive of them.
In application Serial No. 78183381 applicant has
appealed the trademark examining attorney’s final
requirement that applicant disclaim THE BASEBALL CHANNEL
apart from the mark MLB TV THE BASEBALL CHANNEL, and his
final refusal to register the mark absent compliance with
the final requirement. Section 6(a) of the Trademark Act,
15 U.S.C. 1056(a). The basis of the disclaimer requirement
is the examining attorney’s contention that THE BASEBALL
CHANNEL is merely descriptive of the recited services.
Briefs have been filed, but an oral hearing was not
requested. Because the underlying issue in each
application is the same, i.e., whether THE BASEBALL CHANNEL
Ser Nos. 78183355 and 78183381
3
is merely descriptive of the recited services, the appeals
have been treated in a single opinion.
It is the examining attorney’s position that THE
BASEBALL CHANNEL is merely descriptive of applicant’s
specific services of “producing and distributing
programming for others in the nature of baseball games…
through broadcast media including television.”3 The
examining attorney contends “[t]he combined term ‘THE
BASEBALL CHANNEL’ may be used to describe a television
channel about the game of baseball or featuring baseball
games. In addition, the eventual broadcasting of programs
under the term ‘THE BASEBALL CHANNEL’ is merely descriptive
of the intended purpose or function of the program
production and distribution services recited in the instant
application.” (Brief, p. 4).
The examining attorney made of record the following
definitions from The American Heritage Dictionary of the
English Language (4th ed. 2000):
baseball: A game played with a bat and ball by
two opposing teams of nine players, each team
playing alternately in the field and at bat,
the players at bat having to run a course of
four bases laid out in a diamond pattern in order
to score.

3 We note that the examining attorney has not argued that THE
BASEBALL CHANNEL is merely descriptive of any of the other
services set forth in the recitation of services. In view
thereof, the examining attorney failed to prove that the phrase
is descriptive of such services.
Ser Nos. 78183355 and 78183381
4
channel: A specified frequency band for the
transmission and reception of electromagnetic
signals, as for television signals.

Applicant, in urging reversal of the refusal to
register, asserts that THE BASEBALL CHANNEL does not
immediately convey any information about the nature of
applicant’s services of “producing and distributing
programming for others in the nature of baseball games…
through broadcast media including television;” and that the
word CHANNEL, in particular, does not describe any feature
or characteristic of applicant’s production or distribution
services.
It is applicant’s position that the definition of
“channel” relied on by the examining attorney is not
applicable to applicant’s recited services as they do not
involve television broadcasting services or the
transmission of and reception of television signals.
Further, applicant argues that the word “channel” has a
number of meanings, including “a means of communication or
expression”; “a way, course or direction of thought or
action”; “a conduit”; and “to direct toward or into some
particular course.”4 In view of these meanings, applicant

4 Random House Unabridged Dictionary (2d ed. 1993); Merriam-
Webster Online; and Dictionary.com.
Ser Nos. 78183355 and 78183381
5
argues that its mark may suggest that its services are like
a conduit of baseball-related information and content or
that through the provision of applicant’s services,
consumers are directed toward or into a more heightened
interest in the sport of baseball. Applicant concludes
that doubt should be resolved in its favor.5
A term is deemed to be merely descriptive of goods or
services, within the meaning of Section 2(e)(1) of the
Trademark Act, if it forthwith conveys an immediate idea of
an ingredient, quality, characteristic, feature, function,
purpose or use of the goods or services. In re Gyulay, 820
F.2d 1216, 3 USPQ 1009 (Fed. Cir. 1987) and In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215 (CCPA 1978).
Moreover, in order to be merely descriptive, the mark must
immediately convey information as to the ingredients,
qualities or characteristics of the goods or services with
a “degree of particularity.” See In re TMS Corporation of
the Americas, 200 USPQ 57, 59 (TTAB 1978); and In re
Entenmanns Inc., 15 USPQ2d 1750, 1751 (TTAB 1990), aff’d,
unpub’d, Fed. Cir. February 13, 1991.

5 We note that applicant, although acknowledging that it was a
non-precedential case, nonetheless referred in its reply brief
(p. 3) to In re Petersen’s Guide (TTAB August 4, 1998). The
Board disregards citation to any non-precedential decision
(unless, of course, it is asserted for res judicata, law of the
case, or such other issues). See General Mills Inc. v. Health
Valley Foods, 24 USPQ2d 1270, at n. 9 (TTAB 1992).
Ser Nos. 78183355 and 78183381
6
Further, it is well established that the determination
of mere descriptiveness must be made not in the abstract or
on the basis of mere guesswork, but in relation to the
goods or services for which registration is sought, the
context in which the mark is used, and the impact that it
is likely to make on the average purchaser of such goods or
services. See In re Consolidated Cigar Co., 35 USPQ2d 1290
(TTAB 1995). It has long been acknowledged that there is
thin line between terms that are merely descriptive and
those that are suggestive. See In re Atavio Inc., 25
USPQ2d 1361 (TTAB 1992).
The examining attorney bears the burden of showing
that a mark is merely descriptive of the identified goods
or services. See In re Merrill, Lynch, Pierce, Fenner, and
Smith Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1143 (Fed. Cir.
1987).
In the present case, we find that the examining
attorney has not established that THE BASEBALL CHANNEL is
merely descriptive of the services of “producing and
distributing programming for others in the nature of
baseball games… through broadcast media including
television.”
There is no dispute that the word BASEBALL is
descriptive of applicant’s services. Indeed, it is clear
Ser Nos. 78183355 and 78183381
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from the recitation of services that the programming
applicant intends to produce and distribute is in the
nature of baseball games. Therefore a significant
characteristic of such programming is that it will feature
baseball games.
Further, we recognize that the word CHANNEL is
descriptive of television broadcasting services. However,
the services at issue in this case are not television
broadcasting services, but rather the production and
distribution of programming. It is not at all clear from
the definition of “channel” of record that the term has
descriptive significance as applied to such services.
Moreover, the record is devoid of any descriptive uses of
“channel” for the production and distribution of
programming. Thus, we are not persuaded that the phrase
THE BASEBALL CHANNEL as used in connection with such
services conveys an immediate idea about the services with
any degree of particularity. Specifically what THE
BASEBALL CHANNEL describes about the services of producing
and distributing programming is ambiguous and unclear.
In sum, based on the limited record before us, we
conclude that THE BASEBALL CHANNEL when considered as a
whole in connection with “producing and distributing
programming for others in the nature of baseball games…
Ser Nos. 78183355 and 78183381
8
through broadcast media including television” is not merely
descriptive. To the extent that there is any doubt in this
case, we have resolved that doubt in applicant’s favor.
Decision: In application Serial No. 78183355 the
refusal to register under Section 2(e)(1) is reversed.
In application Serial No. 78183381 the refusal of
registration based on applicant’s failure to disclaim THE
BASEBALL CHANNEL is reversed.