The Amend Group, Inc.Download PDFTrademark Trial and Appeal BoardMar 19, 2009No. 76615112 (T.T.A.B. Mar. 19, 2009) Copy Citation Mailed: 3/19/09 UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re The Amend Group, Inc. ________ Serial No. 76615112 _______ Robert D. McCutcheon of Munck Carter for The Amend Group, Inc. Hannah M. Fisher, Trademark Examining Attorney, Law Office 105 (Craig D. Taylor, Managing Attorney). _______ Before Quinn, Kuhlke and Walsh, Administrative Trademark Judges. Opinion by Quinn, Administrative Trademark Judge: The Amend Group, Inc. filed, on October 6, 2006, an intent-to-use application to register the mark MAJOR LEAGUE BOWLING (“BOWLING” disclaimed) for “entertainment services, namely, bowling alley services, organizing bowling teams, and organizing and conducting amateur and professional bowling events and exhibitions” (in International Class 41). The trademark examining attorney refused registration under Section 2(e)(1) of the Trademark Act, 15 U.S.C. THIS OPINION IS NOT A PRECEDENT OF THE T.T.A.B. Ser. No. 76615112 2 §1052(e)(1), on the ground that the proposed mark, when used in connection with the services, is merely descriptive thereof. When the refusal was made final, applicant appealed.1 Applicant and the examining attorney filed briefs. Applicant contends that its mark is just suggestive because the mark does not convey an immediate idea, with a degree of particularity, about the nature of applicant’s services. Further, applicant states that no organization with the name “Major League Bowling” exists, and that the record is devoid of any evidence that competitors either use or need to use “major league bowling” to describe the same or similar services. Although applicant questions the probative value of the third-party registrations relied upon by the examining attorney, applicant itself submitted several third-party registrations in connection with its argument that the Office has registered similar marks on the Principal Register. 1 Applicant, in a request for reconsideration, continued to argue that its mark is not merely descriptive, but also offered, in the alternative, an amendment to the Supplemental Register. The examining attorney correctly informed applicant that until applicant filed an amendment to allege use or a statement of use, an amendment to the Supplemental Register was impermissible. Inasmuch as applicant did not file an amendment to allege use, the final refusal based on the proposed amendment to the Supplemental Register was unnecessary. So as to be clear, we make no finding as to the registrability of applicant’s mark on the Supplemental Register. Ser. No. 76615112 3 The examining attorney maintains that the proposed mark is laudatory and merely descriptive of bowling services that are among the best or most impressive of their kind in the field. In support of the refusal, the examining attorney submitted dictionary definitions of the term “major league,” and several third-party registrations of marks comprising, in part, the term “MAJOR LEAGUE,” and showing disclaimers of the term or that the registration issued on the Supplemental Register. A term is deemed to be merely descriptive of goods or services, within the meaning of Section 2(e)(1), if it forthwith conveys an immediate idea of an ingredient, quality, characteristic, feature, function, purpose or use of the goods or services. In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828 (TTAB 2007); and In re Abcor Development, 588 F.2d 811, 200 USPQ 215, 217-18 (CCPA 1978). 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 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); and In re MBAssociates, 180 USPQ 338 (TTAB 1973). Whether a term is merely descriptive is determined not in the Ser. No. 76615112 4 abstract, but in relation to the goods or services for which registration is sought, the context in which it is being used on or in connection with the goods or services, and the possible significance that the term would have to the average purchaser of the goods or services because of the manner of its use. In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979). It is settled that “[t]he question is not whether someone presented with only the mark could guess what the goods or services are. Rather, the question is whether someone who knows what the goods or services are will understand the mark to convey information about them.” In re Tower Tech Inc., 64 USPQ2d 1314, 1316-17 (TTAB 2002). The “average” or “ordinary” consumer is the class or classes of actual or prospective customers of applicant’s goods or services. In re Omaha National Corporation, 819 F.2d 1117, 2 USPQ2d 1859 (Fed. Cir. 1987). The term “major league” is defined in “Merriam-Webster Online,” in relevant part, as “broadly: a league of major importance in any of various sports.” (www.m-w.com). Other definitions include the following: “a league of principal importance in other professional sports, such as basketball, football, or ice hockey”; Informal Prominent or important; Informal Impressive, as in extent or quantity. (The American Heritage Dictionary of the English Language Ser. No. 76615112 5 (4th ed. 2006)); “belonging to or among the best or most important of is kind” (Random House Unabridged Dictionary (2006)); and “the most important league in any sport (especially baseball).” (WordNet 3.0 (2006)). Based on the evidence of record, we find that the proposed mark MAJOR LEAGUE BOWLING is merely descriptive. The term immediately informs prospective customers that applicant’s “entertainment services, namely, bowling alley services, organizing bowling teams, and organizing and conducting amateur and professional bowling events and exhibitions” are among the best or most important of their kind in the industry. The term “major league” is, without question, a term of art that has a particular meaning in the sports industry, namely as a laudatory term to describe the best in any sport. The term would retain this merely descriptive meaning when combined with the name of a sport, in this case, bowling. The mark is laudatorily descriptive of entertainment services related to bowling that are of a high quality. Applicant relies on the fact that there is no such organization called “Major League Bowling.” However, the fact that applicant may be the first and only user of a merely descriptive designation does not justify registration if the only significance conveyed by the term Ser. No. 76615112 6 is merely descriptive. See In re National Shooting Sports Foundation, Inc., 219 USPQ 1018 (TTAB 1983). Applicant and the examining attorney have submitted competing evidence of third-party registrations of marks comprising, in part, the term “MAJOR LEAGUE.”2 In most cases, but not all, the registration includes a disclaimer of “MAJOR LEAGUE,” the registration issued under Section 2(f), or the registration issued on the Supplemental Register. We have reached our decision without giving any probative weight to the competing evidence of third-party registrations. As often stated, each case must stand on its own record and, in any event, the Board is not bound by the actions of prior examining attorneys. See In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) [“Even if some prior registrations had some characteristics similar to [applicant’s] application, the 2 Applicant also introduced third-party registrations of marks that include terms such as “NATIONAL,” “AMERICAN” and “STATE” for goods and/or services relating to sports. Although we have considered this evidence, it has no relevance to the specific issue in this appeal. Applicant’s evidence also includes cancelled third-party registrations and applications. Expired registrations and pending and abandoned applications have no probative value in this appeal. Action Temporary Services Inc. v. Labor Force Inc., 870 F.2d 1563, 10 USPQ2d 1307, 1309 (Fed. Cir. 1989) (“[A] cancelled registration does not provide constructive notice of anything”); and Interpayment Services Ltd. v. Docters & Thiede, 66 USPQ2d 1463, 1467 n.6 (TTAB 2003) (applications are only probative to show that the application has been filed). Ser. No. 76615112 7 PTO’s allowance of such prior registrations does not bind the board or this court.”]. Decision: The refusal to register is affirmed. Copy with citationCopy as parenthetical citation