Bettor Technology, Inc.

Trademark Trial and Appeal Board

Dec 20, 2001

No. 75489177 (T.T.A.B. Dec. 20, 2001)

12/20/01 Paper No. 14
BAC

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Bettor Technology, Inc.
________

Serial No. 75/489,177
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Francis E. McDonnell, Esq. for Bettor Technology, Inc.

Darlene D. Bullock, Trademark Examining Attorney, Law
Office 111 (Craig Taylor, Managing Attorney).
_______

Before Hohein, Chapman and Wendel, Administrative Trademark
Judges.

Opinion by Chapman, Administrative Trademark Judge:
An application has been filed by Bettor Technology,
Inc. to register on the Principal Register the mark THE
RACING NETWORK for the following services, as amended:
“audio, data and video telecommunications services, namely,
the dissemination of audio, data and video programs
featuring horse racing, dog racing and other sports events
over television, satellite and other audio and video media
and over a global computer network” in International Class
38; and “entertainment services, namely, the production of
audio, data and video programs featuring horse racing, dog
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser. No. 75/489177
2
racing and other sports events for dissemination over
television, satellite and other audio and video media and
over a global computer network” in International Class 41.1
Citing Section 2(e)(1) of the Trademark Act, 15 U.S.C.
§1052(e)(1), the Examining Attorney has finally refused
registration for both classes of services on the ground
that when applicant’s mark is used in connection with the
services identified in the application, it is merely
descriptive thereof.
Applicant has appealed, and both applicant and the
Examining Attorney have filed briefs. Applicant did not
request an oral hearing.
The test for determining whether a mark is merely
descriptive under Section 2(e)(1) of the Trademark Act is
whether the term immediately conveys information concerning
a significant quality, characteristic, function,
ingredient, attribute or feature of the product or service
in connection with which it is used or is intended to be
used. See In re Abcor Development Corp., 588 F.2d 811, 200
USPQ 215 (CCPA 1978); In re Venture Associates, 226 USPQ
285 (TTAB 1985); and In re Bright-Crest, Ltd., 204 USPQ 591

1 Application Serial No. 75/489,177, filed May 21, 1998, based on
applicant’s assertion of a bona fide intention to use the mark in
commerce. As part of applicant’s response to the first Office
action refusing registration of the mark as merely descriptive,
applicant disclaimed the term “racing.”
Ser. No. 75/489177
3
(TTAB 1979). The determination of mere descriptiveness
must be made, not in the abstract, but rather in relation
to the goods or services for which registration is sought,
the context in which the term or phrase is being or will be
used on or in connection with those goods or services, 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); and In
re Pennzoil Products Co., 20 USPQ2d 1753 (TTAB 1991). That
is, the 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. See In re Home Builders
Association of Greenville, 18 USPQ2d 1313 (TTAB 1990); and
In re American Greetings Corp., 226 USPQ 365 (TTAB 1985).
The Examining Attorney argues that the phrase “THE
RACING NETWORK” describes a significant feature of the
services, namely, “that the applicant has a broadcast
network where the subject matter is racing” (Final Office
action, p. 2). In support of her refusal to register the
Examining Attorney submitted (i) dictionary definitions of
the terms “race” and “network”; (ii) photocopies of several
excerpted stories retrieved from the Nexis database
Ser. No. 75/489177
4
relating to “racing network”; and (iii) several third-party
registrations wherein the term “network” was disclaimed.
The most relevant portions of the definitions from The
American Heritage Dictionary of the English Language (Third
edition 1992) are as follows:
(1) “racing” (verb) is defined as “1.
Sports. To compete in a contest
of speed”; and

(2) “network” (noun) is defined as
“3. a. A chain of radio or
television broadcasting stations
linked by wire or microwave
relay. B. A company that
produces the programs for these
stations.”

The following are examples of the excerpted stories
retrieved from the Nexis database, showing use of the term
“racing network” (emphasis added):
HEADLINE: Top Trainers Have Their Ups,
Downs
...Sahadi auditioned for an
announcer’s job on a national
television racing network. She asked
at Santa Anita about an in-house
television spot. “The Palm Beach
Post,” June 1, 2000;

HEADLINE: A holiday for handicappers;
Stakes races across the nation offer
plenty to chew on
...major races will not be shown on
one of the national networks, regular
or cable, this summer. Instead, the
club has contracted with Television
Games (TVG) Network, a 24-hour horse
racing network available only via
Ser. No. 75/489177
5
satellite. “The San-Diego Union-
Tribune,” May 27, 2000; and

HEADLINE: AT&T beats Click! into
Uplace; High-speed Internet, cable TV,
local phone service through new lines
...University Place subscribers will
get new channels such as Speedvision,
a motor sports racing network, Country
Music Television, E! Entertainment
Network, sports pay channels, Fox
Family, Toon Disney, Oxygen and The
Weather Channel.... “The News
Tribune,” July 10, 2000.

Applicant contends that in this case “two descriptive
words, ‘RACING’ and ‘NETWORK’ have been combined to form a
nondescriptive phrase that does not have a plain and
readily understood meaning” (brief, p. 1); that the
purchasing public would need further information to
perceive any significance of the combined term “because it
is not clear whether the mark ‘THE RACING NETWORK’ refers
to automobile racing, boat racing, or, as in the instant
matter, horse and dog racing” (brief, p. 2); that it is
inappropriate to dissect applicant’s mark into separate
words, without considering the mark as a whole; and that,
when considered as a whole, the phrase THE RACING NETWORK
is not merely descriptive of applicant’s services.
We agree with the Examining Attorney that the phrase
THE RACING NETWORK immediately and directly conveys
information about a significant feature of both applicant’s
Ser. No. 75/489177
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telecommunications services and its entertainment services.
Specifically, applicant’s services, as identified, are for
the dissemination of programs featuring horse racing and
dog racing over television and other media, as well as the
production of said programs for dissemination over
television and other media. This record shows that the
purchasing public would perceive that applicant provides a
racing network, both providing programs dealing with racing
and telecasting said programs over television, satellite
and other media. A descriptive mark does not have to
provide information regarding every aspect of applicant’s
services. See In re Opryland USA Inc., 1 USPQ2d 1409 (TTAB
1986); and In re The Weather Channel, Inc., 229 USPQ 854
(TTAB 1985). See also, In re Conus Communications Co., 23
USPQ2d 1717 (TTAB 1992).
The combination of these words does not create an
incongruous or creative or unique mark. Rather,
applicant’s mark, THE RACING NETWORK, if used in connection
with applicant’s identified services, would immediately
describe, without conjecture or speculation, a significant
feature of applicant’s services, as discussed above.
Nothing requires the exercise of imagination or mental
processing or gathering of further information in order for
purchasers of and prospective customers for applicant’s
Ser. No. 75/489177
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services to readily perceive the merely descriptive
significance of the phrase THE RACING NETWORK as it
pertains to applicant’s services. See In re Gyulay, 820
F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987); In re Omaha
National Corporation, 819 F.2d 1117, 2 USPQ2d 1859 (Fed.
Cir. 1987); In re Intelligent Instrumentation Inc., 40
USPQ2d 1792 (TTAB 1996); and In re Time Solutions, Inc., 33
USPQ2d 1156 (TTAB 1994).
Decision: The refusal to register under Section
2(e)(1) is affirmed.