Casino Data Systems

Trademark Trial and Appeal Board

Jun 8, 2004

No. 76155359 (T.T.A.B. Jun. 8, 2004)

Mailed:
8 June 2004
AD
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
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In re Casino Data Systems
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Serial No. 76155359
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Bernhard Kreton, Esq. for Casino Data Systems.
Angela M. Micheli, Trademark Examining Attorney, Law Office
108 (David E. Shallant, Managing Attorney).
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Before Bucher, Holtzman, and Drost, Administrative
Trademark Judges.
Opinion by Drost, Administrative Trademark Judge:
On October 26, 2000, Casino Data Systems (applicant)
applied to register the mark JACKPOT BINGO, in typed form,
on the Principal Register for goods identified as “gaming
devices, namely, gaming machines and computer game software
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE
TTAB
Ser. No. 76155359
2
therefor” in International Class 9.1 Applicant has
disclaimed the term “Bingo.”
The examining attorney ultimately refused to register
applicant’s mark on the ground that the mark is merely
descriptive under Section 2(e)(1) of the Trademark Act, 15
U.S.C. § 1052(e)(1), of applicant’s goods. According to
the examining attorney, the “term JACKPOT BINGO is the name
of a type of gambling game. The applicant will offer the
potential consumer the ability to play jackpot bingo on its
gaming machines.” Examining Attorney’s Brief at 2.
Applicant points out that, according to the examining
attorney’s own definition, “bingo” is a “game of chance
played with cards having numbered squares corresponding to
numbered balls drawn at random and won by covering five
such squares in a row.”2 Applicant’s Brief at 4. Applicant
goes on to assert that an examination of its promotional
material “reveals no cards and no balls; in short, nothing
in the definition of bingo.” Id.
After the examining attorney made the refusal final,
applicant appealed to this board.
1 Serial No. 76155359 is based on an allegation of a bona fide
intention to use the mark in commerce.
2 See YourDictionary.com definition submitted with the Office
Action dated April 19, 2001.
Ser. No. 76155359
3
A mark is merely descriptive if it immediately
describes the ingredients, qualities, or characteristics
of the goods or services or if it conveys information
regarding a function, purpose, or use of the goods or
services. In re Abcor Development Corp., 588 F.2d 811,
200 USPQ 215, 217 (CCPA 1978). See also In re Nett
Designs, 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir.
2001); In re MBNA America Bank N.A., 340 F.3d 1328, 67
USPQ2d 1778, 1780 (Fed. Cir. 2003) (A “mark is merely
descriptive if the ultimate consumers immediately
associate it with a quality or characteristic of the
product or service”). We look at the mark in relation to
the goods or services, and not in the abstract, when we
consider whether the mark is descriptive. Abcor, 200 USPQ
at 218.
When we analyze the evidence, we must keep in mind
that the test is not whether prospective purchasers can
guess what applicant’s goods are after seeing applicant’s
mark alone. Abcor, 200 USPQ at 218 (“Appellant’s abstract
test is deficient – not only in denying consideration of
evidence of the advertising materials directed to its
goods, but in failing to require consideration of its mark
‘when applied to the goods’ as required by statute”).
Ser. No. 76155359
4
In this case, we start with the examining attorney’s
printouts that show that the term JACKPOT BINGO is a term
in common usage to describe a gambling game.
Billy Atkins, director of the charitable bingo
division at the Texas Lottery Commission, said other
states with progressive jackpot bingo, most noticeably
Michigan, have had great success in boosting business.
San Antonio Express-News, January 6, 2002.
The cash jackpot bingo, which can reach payouts close
to $1000 by the end of the trip, was one of the most
popular attractions with old and young alike.
Maine Sunday Telegram, November 16, 2001.
The bright and meticulously maintained facility boasts
95,000 square feet of pure excitement, with 24-hour
blackjack and poker, 2,000 of the latest slots and
video poker machines, jackpot bingo, and more.
Successful Meetings, November 2001.
A little creativity and an idea that came from a
chance meeting may just do the trick, when Ponca Tribe
premieres its jackpot bingo game every Tuesday.
Indian Country Today, August 13, 2001.
The event will feature, food, music and games,
including a $10,000 jackpot bingo game.
Times-Picayune (New Orleans), March 25, 2001.
There’ll also be readings of favorite sauerkraut
celebration memories by participants from over the
years and jackpot bingo.
Bismarck Tribune, October 10, 2000.
Although the bus was delayed picking them up, the Fun
‘N’ Games group had a wonderful time playing the
slots, jackpot bingos, and even taking a try at skeet
shooting.
Press Journal (Vero Beach, FL), October 24, 1999.
[T]he ship’s intercom boomed the commencement of a
vegetable–carving demonstration to be followed by the
daily jackpot bingo game.
Times-Picayune (New Orleans), February 11, 1996.
Ser. No. 76155359
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The board took action following an audit that reported
financial discrepancies in an account for progressive
jackpot bingo games.
The Advocate (Baton Rouge, LA), July 25, 1995.
Jackpot bingo is considered gambling and must be
conducted while the ship is in international waters.
St. Petersburg Times, May 3, 1994.
Clearly, this evidence shows that the term “Jackpot Bingo”
is a term used to refer to a particular type of bingo
featuring progressive jackpots.
Applicant claims that the examining attorney has
apparently “distorted the meaning of the word ‘bingo’ to
encompass more than is commonly understood.” Applicant’s
Brief at 4. However, applicant’s implication that the term
“bingo” is only descriptive of games played with actual
cards and numbered balls misses the point. While bingo may
be traditionally played with cards and numbered balls,
applicant’s promotional literature makes it clear that
applicant’s gaming machines incorporate features of the
traditional game and result in a slot machine version of
the traditional game. Applicant’s machine advertises “Line
up five Jackpot [symbols] & win progressive,” which is
similar to the traditional bingo game that is won by
covering five squares in a row.
Also, according to applicant’s literature, applicant’s
goods have other indicia of the traditional game of bingo.
Ser. No. 76155359
6
- Five reel video slot with added bingo bonus game
- Bonus round features “live” hopper with animated
bingo balls “daubing” the bingo card
Therefore, the term “bingo,” which applicant has
disclaimed, describes the bingo features of applicant’s
goods.
Additionally, applicant’s literature also makes it
clear that the term “jackpots” is a significant feature of
applicant’s goods (“Two high hit frequency progressive
jackpots”).
Thus, both words (jackpot and bingo) individually have
a descriptive meaning when applied to applicant’s goods.
The gaming machines feature jackpots and they involve a
bingo-like game. While applicant argues that “these
animations (available only after successfully playing the
primary game shown in the promotional depiction) evoke
familiar concepts, they do not describe a gaming machines.”
Applicant’s Brief at 5 (emphasis in original). We
disagree. The terms do describe a feature of applicant’s
goods, i.e., that its goods are based on the traditional
game of bingo with a progressive jackpot feature. The
combined term JACKPOT BINGO is also widely used to refer to
a specific type of bingo game. Applicant’s gaming machines
Ser. No. 76155359
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would be a gaming machine based on the often discussed
“jackpot bingo” game.
Applicant also argues that “the buying consumers are
casinos. It is hard to imagine a more discerning buyer.”
Applicant’s Brief at 5. We do not see how this argument of
counsel significantly changes the descriptiveness analysis.
These purchasers, as applicant has described them, are even
more likely than ordinary purchasers to be aware of the
traditional “jackpot bingo” game. When these purchasers
see applicant’s promotional literature, they would
immediately know that applicant’s goods are simply gaming
machines based on this game of bingo featuring progressive
jackpots.
In response to applicant’s other points, we note that
even if applicant were the first or only gaming machine or
computer game software producer to make a machine or
software based on the traditional game of “Jackpot Bingo,”
that fact would not obliterate the descriptive significance
of the term. In re Tekdyne Inc., 33 USPQ2d 1949, 1953
(TTAB 1994) (“The fact that applicant will, or intends to
be, the first and/or only entity to use the term "MICRO-
RETRACTOR" for surgical clamps is not dispositive where, as
here, such term unequivocally projects a merely descriptive
connotation”). Applicant also argues that the term
Ser. No. 76155359
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“Jackpot Bingo” has “never conjured up gaming machines.”
Applicant’s Brief at 6. However, we must view the term in
relationship with the goods, including applicant’s
promotional material. In re Gyulay, 820 F.2d 1216, 3
USPQ2d 1009, 1010 (Fed. Cir. 1987) (“We discern no error or
inequity in the Board's use of appellant's catalog as
evidence of what it contains”). Even if applicant’s term in
the abstract does not “conjure up” gaming machines, when
the term is used on gaming machines having progressive
jackpots and bingo features, the term would immediately
describe a characteristic or feature of applicant’s goods.
In this case, applicant’s goods are gaming machines
that have features from traditional bingo games (“bingo
bonus game” and animated bingo balls and bingo cards) and
progressive jackpots. “Jackpot Bingo” is also the name of
a specific type of bingo gambling game. The evidence
supports a conclusion that when prospective purchasers
encounter the same term on applicant’s goods they will
immediately know that applicant’s goods are bingo-like
games with progressive jackpots. Therefore, applicant’s
term is merely descriptive of its goods.
Decision: The refusal to register under Section
2(e)(1) of the Trademark Act is affirmed.