Crouch-Pion

Trademark Trial and Appeal Board

Oct 3, 2003

No. 76256749 (T.T.A.B. Oct. 3, 2003)

Mailed: October 3, 2003
Paper No. 8
GDH/gdh
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Crouch-Pion
________
Serial No. 76256749
_______
Mathew A. Newboles of Stetina Brunda Garred & Brucker for Leslie
Crouch-Pion.
Andrew J. Benzmiller, Trademark Examining Attorney, Law Office
116 (Meryl Hershkowitz, Managing Attorney).
_______
Before Simms, Hohein and Walters, Administrative Trademark
Judges.
Opinion by Hohein, Administrative Trademark Judge:
Leslie Crouch-Pion has filed an application to register
the term "BUNCO" for "slot machines."1
Registration has been finally refused under Section
2(e)(1) of the Trademark Act, 15 U.S.C. §1052(e)(1), on the
ground that, when used in connection with applicant's goods, the
term "BUNCO" is merely descriptive of them.
Applicant has appealed. Briefs have been filed, but an
oral hearing was not requested. We affirm the refusal to
register.
1 Ser. No. 76256749, filed on May 1, 2001, which is based on an
allegation of a bona fide intention to use term in commerce.
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Ser. No. 76256749
2
It is well settled that a term is considered to be
merely descriptive of goods or services, within the meaning of
Section 2(e)(1) of the Trademark Act, if it forthwith conveys
information concerning any significant ingredient, quality,
characteristic, feature, function, purpose, subject matter or use
of the goods or services. See, e.g., In re Gyulay, 820 F.2d
1216, 3 USPQ2d 1009 (Fed. Cir. 1987) and In re Abcor Development
Corp., 588 F.2d 811, 200 USPQ 215, 217-18 (CCPA 1978). It is not
necessary that a term describe all of the properties or functions
of the goods or services in order for it to be considered to be
merely descriptive thereof; rather, it is sufficient if the term
describes a significant attribute or idea about them. Moreover,
whether a term is merely descriptive is determined not in the
abstract but in relation to the goods or services for which
registration is sought, the context in which it is being used or
is intended to be used on or in connection with those 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 such use. See In re Bright-Crest, Ltd., 204 USPQ 591,
593 (TTAB 1979). Thus, "[w]hether consumers could guess what the
product [or service] is from consideration of the mark alone is
not the test." In re American Greetings Corp., 226 USPQ 365, 366
(TTAB 1985).
Applicant, while acknowledging in its brief that the
evidence made of record by the Examining Attorney from searches
of the "NEXIS" database demonstrates that the term "BUNCO" "is
Ser. No. 76256749
3
used to denote a hand-playing dice game," argues among other
things that (emphasis in original):
Based on this usage of the term, one
cannot reasonably derive a clear
understanding, or even a general one, that
such term signifies Appellant's particular
goods, namely, slot machines. Appellant's
mark and the goods associated therewith
clearly extend far beyond mere hand dice
games, particularly insofar as the mark is
utilized in connection with sophisticated,
expensive, stand-alone mechanical machines
which do not involve the use of dice in any
manner or fashion. Thus, the cited excerpts
that fail to capture the true essence of
Applicant's goods cannot be used as
evidentiary support for the Examining
Attorney's mere descriptiveness rejection.
Moreover, while noting in particular that the Examining Attorney
"has presented one excerpt which associates the term 'bunco' with
'slot machines,'" applicant points out that "such excerpt was
from an article written about Applicant's own company that was
referenced therein not only with slot machines, but with various
types of other products sold by the Applicant as well (e.g.,
stationary [sic], newsletters, T-shirts, jewelry, etc.)"
(underlining in original). In view thereof, applicant asserts
that "such excerpt fails to demonstrate the alleged descriptive
use, but rather amply illustrates Appellant's arbitrary use of
the term 'bunco' in association with a wide range of different
products." Applicant urges, in light of the record herein, that
the term "BUNCO" is at a minimum no more than suggestive of her
goods.
We agree with the Examining Attorney, however, that the
evidence made of record from his searches of the "NEXIS"
Ser. No. 76256749
4
database, together with the dictionary definitions, which we
judicially notice, of the words "slot machine" and "bunco,"2 are
sufficient to demonstrate prima facie that the term "BUNCO" is
merely descriptive of applicant's goods and that applicant has
offered nothing which serves to rebut such showing. In
particular, while the Examining Attorney points out in his brief
that The American Heritage Dictionary of the English Language
(3rd ed. 1992) defines "slot machine" as "a vending or gambling
machine operated by the insertion of coins into a slot," we note
that, for instance, Webster's Third New International Dictionary
(3rd ed. 1993) lists "bunco" in relevant part as "2 : any of
various games (as card games) in which the person who proposes
the game expects to win by virtue of an opponent's ignorance,
lack of skill, or naiveté." The "NEXIS" excerpts, the Examining
Attorney accurately observes, in this regard specifically "show
that 'bunco' (occasionally spelled 'bunko') is the name of a type
of gambling game" which is generally played with dice.
In particular, the "NEXIS" excerpts indicate in
pertinent part that (emphasis added):
"Surprisingly, for such a good-natured
and sociable activity, bunco has a shady
2 The Examining Attorney, in his brief, requests with respect to the
former that "the Board ... take judicial notice of this definition"
and states as to the latter that "the record includes a dictionary
definition of 'bunco'" (although no such definition appears in either
the initial or final Office actions). Inasmuch as it is settled that
the Board may properly take judicial notice of dictionary definitions,
consideration has been given to the above. See, e.g., Hancock v.
American Steel & Wire Co. of New Jersey, 203 F.2d 737, 97 USPQ 330,
332 (CCPA 1953); University of Notre Dame du Lac v. J. C. Gourmet Food
Imports Co., Inc., 213 USPQ 594, 596 (TTAB 1982), aff’d, 703 F.2d
1372, 217 USPQ 505 (Fed. Cir. 1983); and Marcal Paper Mills, Inc. v.
American Can Co., 212 USPQ 852, 860 n. 7 (TTAB 1981).
Ser. No. 76256749
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past. It was a gambling game in the West
during the Gold Rush, and the word 'bunco'--
also spelled 'banco' and 'bunko'--came to
mean a swindling game, as in the expression
'bunco squad.'" -- Record (Bergen County,
NJ), April 28, 2002;
"An then there's bunco stationery, a
bunco newsletter and bunco jewelry, and a
bunco slot machine is in the works, according
to Crouch, founder of the World Bunco
Association and the force behind the plethora
of related products.
'Some of (the phenomenon) has to do with
getting back to basics--just good, old, clean
fun,' said Crouch, who runs the WBA out of
her home." -- San Diego Union-Tribune,
January 29, 2002 (article headlined: "BUNCO
SQUADS; Old dice game catching on with a new
crowd");
"In Sienna Plantation, for example, for
more than a year now, a group of about 12 to
20 moms get together the first Saturday of
every month to play the dice game Bunco." --
Houston Chronicle, August 9, 2001;
"Within the community, there are sewing
groups, reading and discussion groups and
bunco (a dice game) groups, plus community
swimming and tennis teams." -- Atlanta
Journal & Constitution, July 15, 2001;
"In the upper middle-class Aristida home
of Darlene and Ken Mauro, eight couples are
whooping it up over bunco, a dice game that's
getting credit for bringing neighbors
together, building friendships and turning
responsible adults into giddy merrymakers."
-- Tampa Tribune, May 17, 2001;
"At the turn of the century, the game
was known as a pleasant parlor game. During
Prohibition, Bunco gambling parlors sprang
up--the most notorious were located in
Chicago. The police who raided the gambling
parlors were known as Bunco Squads, so the
word took on a meaning applied to scams and
con games." -- Topeka Capital Journal, April
5, 2001;
"A venerable parlor game with a colorful
past, bunco has been soaring in popularity in
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suburbs where new mothers and newcomers are
looking to make some friends.
....
Bunco is a progressive dice game of
chance. The rules vary slightly from group
to group, but the essence is the same.
....
'It's a mindless game, in the sense that
you don't have to think or have any skill at
all,' said Leslie Crouch, founder of the
World Bunco Association and licensor of the
only trademarked bunco game on the market,
'It's Bunco Time.'" -- Chicago Tribute,
February 21, 2001; and
"It grew in respectability after the
Civil War, and almost every city had some
sort of bunco parlor. It moved into the home
early last century, becoming a popular parlor
game. During Prohibition, however, bunco
gambling parlors again flourished, the most
notorious ones being in and around Chicago.
The term 'bunco squads' referred to
detectives who raided those establishments."
-- San Francisco Chronicle, December 22,
2000.
Furthermore, citing her registration for the mark "IT'S BUNCO
TIME!!!" and design (as mentioned in one of the "NEXIS" excerpts
set forth above),3 we observe that applicant in any event has
conceded in her response to the initial Office action that "the
term 'BUNCO' is and has always been generic for a particular type
of dice game" as shown by the "NEXIS" excerpts.
The Examining Attorney, additionally noting that in her
response to the initial Office action, applicant described her
goods as "mechanical slot machines used for gambling," points out
in his brief (footnote omitted) that, as illustrated by an online
press release which he also made of record:
3 Reg. No. 2,226,530, which issued on February 23, 1999 with respect to
"equipment sold as a unit for playing a dice game" and which includes
a disclaimer of the term "BUNCO."
Ser. No. 76256749
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Other games that may have originated as
parlor games played with cards or dice, or as
board games, are now also commonly played on
slot machines. For example, the printout
(attached to the final refusal) of an online
press release discussing various types of
gambling machines to be exhibited at the
annual Gaming Expo in Las Vegas refers to
other gambling games derived from card and
board games that are now played on slot and
video gambling machines; the website also
refers to a slot machine or video gambling
machine (apparently from one of applicant's
competitors) called BUNCO NIGHTS, "adapted
from the popular parlor game."
Such press release, which is headlined "IGT to unveil new video
slot games ... at Gaming Expo" and is dated "August 22nd, 2001,"
reads in relevant portion as follows (bold in original):
With the countdown under way to early
October's Global Gaming Expo--an inaugural
trade show event for the gaming industry--
gaming manufacturers are putting final
touches on the new and improved products they
will exhibit at the Las Vegas show.
At the headquarters of IGT, the world's
largest maker of slot and video gaming
machines, the pace is feverish. IGT always
unveils an extensive lineup of new games at
the fall gaming expo, and this year will be
no exception. The company's ... booth will
be loaded with new gaming machines, many of
them based on well-known entertainment themes
and personalities.
IGT's game designers ... are
acknowledged masters of adapting pop culture
to a gaming machine format. The record in
recent years has been to apply successful
brands from the movies and television to slot
entertainment.
....
IGT will also be introducing a variety
of new premium licensed games based on
popular themes in both iGame Plus and
S2000 platforms. In iGame Plus comes Bunco
Nights , adapted from the popular parlor
Ser. No. 76256749
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game; a video version of the strategy board
game, Othello©; and SPAM®, a video slot that
takes its name and inspiration from the all-
purpose canned meat product.
In the S2000 spinning reel format,
show attendees will see--and be able to play
--UNO , based on one of the world's most
popular card games; SPAM®; Diablo Diamonds ,
and Triple Texas Tea .
In view of the above, including in particular the
"NEXIS" excerpt from the San Diego Union-Tribune which is
headlined "BUNCO SQUADS; Old dice game catching on with a new
crowd" and which refers to applicant's having a "bunco slot
machine ... in the works," the Examining Attorney maintains in
his brief that "no leap in imagination would be required for
consumers seeing the term BUNCO on slot machines to immediately
understand that the slot machines will be used to play the game
of bunco." Such term, the Examining Attorney insists, "thus
merely describes a significant characteristic, feature, function,
purpose or use of applicant's slot machines" and "applicant has
offered no evidence of any other uses of the term and has given
no hints as to what else the term might suggest" instead.
Based on the dictionary definitions and the evidence
made of record by the Examining Attorney, we concur, as noted
previously that the term "BUNCO" is merely descriptive of
applicant's slot machines. Given the indicated capability of
slot machines to replicate virtually any dice, card, board or
other parlor game, both sophisticated purchasers and ordinary
players of applicant's slot machines would immediately understand
that the term "BUNCO" merely describes a significant feature or
Ser. No. 76256749
9
characteristic of the goods, as well as their purpose, function
or use. Specifically, such term conveys forthwith, without
speculation or conjecture, that applicant's goods are used to
play the game of bunco. Nothing about the term "BUNCO," in the
context of applicant's goods, is incongruous, ambiguous or
suggestive, nor is there anything about such term which requires
the exercise of imagination, cogitation or mental processing or
which necessitates the gathering of further information in order
for the merely descriptive significance thereof to be immediately
apparent. Plainly, in light of the resurgent interest in the
game of bunco, the term "BUNCO" immediately conveys that a
principal feature or characteristic of applicant's slot machines,
as well as their purpose or function or use, is to enable players
of such goods to play bunco. The term "BUNCO" is accordingly
merely descriptive of applicant's goods within the meaning of the
statute.
Decision: The refusal under Section 2(e)(1) is
affirmed.