Daktronics, Inc.

Trademark Trial and Appeal Board

Oct 9, 2008

No. 76391084 (T.T.A.B. Oct. 9, 2008)

Mailed: October 9, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Daktronics, Inc.
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Serial No. 76391084
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Hugh D. Jaeger, P.A. for Daktronics, Inc.

Daniel Capshaw1, Trademark Examining Attorney, Law Office
110 (Chris A.F. Pedersen, Managing Attorney).
_______

Before Walsh, Taylor and Wellington, Administrative
Trademark Judges.

Opinion by Taylor, Administrative Trademark Judge:

Daktronics, Inc. filed an application to register on
the Principal Register the mark SPORTS WIRE, in standard
character form, for “services, namely management and
display of sports information on electronic displays and
scoreboards.” The previous examining attorney refused
registration under Section 2(e)(1) of the Trademark Act, 15
U.S.C. § 1052(e)(1), on the ground that applicant’s mark is
merely descriptive when used in connection with the

1 The application was assigned to the current examining attorney
after issuance of the first Office action.

THIS OPINION IS
NOT A PRECEDENT
OF THE TTAB
Ser No. 76391084
2
services because a feature of applicant’s display of
information is sports wire data. In addition to refusing
registration on the ground of descriptiveness, the
examining attorney required applicant to amend the
description of services, finding the exact nature of the
services unclear and the term “management” indefinite, and
to submit a substitute specimen showing use of the mark for
the services recited in the application.
Applicant responded to the Office action by amending
the application to seek registration on the Supplemental
Register, and by amending the recitation of services to
“services, namely electronic transmission of sports
information onto electronic displays and scoreboards.”
Applicant also explained that its services are “‘wire
service transmission of software programs’ directly and
only available from the Applicant/Assignee, Daktronics,
Inc,” and thus the previously submitted specimen should be
acceptable. (Response to first Office action p. 2).
The examining attorney then refused registration on
the Supplemental Register under Section 23 of the Trademark
Act, 15 U.S.C. § 1091, on the ground that the wording
“sports wire” is generic. The examining attorney also
required applicant to delete the wording “services, namely”
Ser No. 76391084
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from its recitation as the wording is unnecessary, and
apparently accepted the specimen of record.
Applicant responded to the Office action by amending
the description of services to “electronic transmission of
sports information onto electronic displays and
scoreboards” and arguing that its applied-for mark is
capable of registration on the Supplemental Register.
The examining attorney then issued a Final Refusal
denying registration on the Supplemental Register.
Seeking to overcome the genericness refusal, applicant
responded to the Final Refusal by amending the drawing to
seek registration of SPORTS WIRE in the following stylized
format, , and to include a statement to describe
the mark, i.e., “[t]he mark consists of a stylized
representation of the words SPORTS WIRE in black with gray
telescoping of the letters. The colors black and gray are
claimed as a distinctive feature of the mark.” Applicant
also amended its application to disclaim the term “Sports
Wire,” and asserted that a separate commercial impression
is created by the stylization and coloring of the lettering
in the words.
The examining attorney issued a non-final Office
action accepting the new special-form drawing, but
requiring a new specimen showing the mark as it now appears
Ser No. 76391084
4
on the drawing. The examining attorney also required that
the disclaimer be withdrawn as it constituted a disclaimer
of the entire mark.
Applicant responded to the new refusals by filing a
premature Notice of Appeal. The application was then
remanded to the examining attorney who maintained the Final
Refusal on the ground of genericness and made final the
requirements that applicant withdraw the disclaimer and
that the drawing and specimen agree.
Applicant filed a second notice of appeal and
subsequently requested remand of the application, which the
Board allowed solely for consideration by the examining
attorney of applicant’s withdrawal of the disclaimer.2
The examining attorney accepted the withdrawal of the
disclaimer and maintained the Final Refusal to register on
the Supplemental Register and the requirement for agreement
between the drawing and the specimen.
Both applicant and the examining attorney filed
briefs.3 We affirm the refusals to register.

2 In its request for remand, applicant also requested
registration on the Supplemental Register. The Board issued an
order that, inter alia, pointed out that the application already
had been so amended. The remand also contained a statement of
acquired distinctiveness which the Board deemed irrelevant given
the amendment to the Supplemental Register.

3 The entirety of applicant’s brief is as follows. “The
proposed mark is not generic. The Examiner has not cited any
Ser No. 76391084
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We consider first the refusal to register the wording
“Sports Wire” on the Supplemental Register on the ground
that it is generic in relation to applicant’s identified
services. To be registrable on the Supplemental Register,
the matter sought to be registered must be “capable of
distinguishing applicant’s goods or services.” Trademark
Act Section 23(a), 23(c). “Generic terms are common names
that the relevant purchasing public understands primarily
as describing the genus of goods or services being sold.
They are by definition incapable of indicating a particular
source of the goods or services.” In re Dial-A-Mattress
Operating Corp., 240 F.3d 1341, 57 USPQ2d 1807, 1810 (Fed.
Cir. 2001)(citations omitted). Because they are incapable
of identifying source, generic terms are not registrable on
the Supplemental Register.
Our primary reviewing court has set forth a two-step
inquiry to determine whether a mark is generic: First,
what is the genus (category or class) of goods or services
at issue? Second, is the term sought to be registered
understood by the relevant public primarily to refer to
that genus (category or class) of goods or services? H.

authority to prove that the mark is generic. Further, the
drawing and specimen are sufficient for filing purposes,
examination purposes, and registration purposes.”

Ser No. 76391084
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Marvin Ginn Corp. v. International Association of Fire
Chiefs, Inc., 782 F. 2d 987, 989, 228 USPQ 528, 530 (Fed.
Cir. 1986).
The ultimate test for determining whether a term is
generic is the primary significance of the term to the
relevant public. See Section 14(c) of the Act. See also
In re American Fertility Society, 188 F.3d 1341, 51 USPQ2d
1832 (Fed. Cir. 1999); and Magic Wand Inc. v. RDB Inc., 940
F.2d 638, 19 USPQ2d 1551 (Fed. Cir. 1991). The burden of
proving genericness falls on the trademark examining
attorney, who must present “clear evidence of generic use.”
See In re Merrill Lynch, Pierce, Fenner, and Smith, Inc.,
828 F.2d 1567, 1571, 4 USPQ2d 1141, 1143 (Fed. Cir. 1987).
“Any competent source suffices to show the relevant
purchasing public’s understanding of a contested term,
including purchaser testimony, consumer surveys, dictionary
definitions, trade journals, newspapers and other
publications.” In re Dial-A-Mattress Operating Corp.,
supra, 57 USPQ2d at 1810. Where, (as in this case) the
matter sought to be registered is a phrase (rather than a
compound word), the examining attorney must “conduct an
inquiry into the ‘meaning of the disputed phrase as a
whole.’” Id., quoting from In re American Fertility
Society, supra, 51 USPQ2d at 1836.
Ser No. 76391084
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The examining attorney has made of record excerpts
from various websites showing generic use of the wording
“sports wire” to demonstrate that the public understands
that “sports wire” primarily refers to the transmission of
sports information electronically to media outlets or the
general public. The excerpts include, for example:
• www.thesportsnetwork.com shows a press
release by a company which describes itself in
the first line as “The Sports Network, the
nation’s premier real time sports wire service,
whose Internet website, … is one of the most
viewed in the world…”
• www.cdn-news.com show the offerings of CCN
Newswire which include “Entertainment Wire,”
“Health Wire” and “Sports Wire.” The sports
wire service is described as “[t]ransmission of
sports news directly to sports desks at over
670 outlets, including print and broadcast
media, wire services, specialty publications,
online services, databases and the Internet.”
• www.starnewsonline.com shows a variety of
sports information provided under the headline
“Sports wire.”
• www.sunsentinel.com sports page shows a
variety of sports information “Sports wire.”
• www.newsday.com shows its “Sports Wire”
featuring a variety of sports information
articles.

The examining attorney also made of record excerpts
from articles from the Nexis database showing common
usage of the phrase “sports wire.” These excerpts
include, for example (emphasis supplied):
• Philadelphia Inquirer, February 10, 2004
HEADLINE: Where keeping score is no day in the
Ser No. 76391084
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park; The Sports Network, headquartered in
Hatboro, has made itself essential for fans.
“… get updated scores, statistics, injury
reports and betting odds over the telephone.
That business morphed into a sports wire
service.”
• U.S. News & World Report, November 15, 1999
states: “Not just a reposting of top stories
from the sports wires, ESPN’s site is full of
original content, including regular features,
columns, and comprehensive coverage of almost
any activity involving…”
• Florida Times-Union, January 10, 1997
states: “ESPNet is still the most popular
sport site on the web, providing links and free
access to its own sports wire service.”
• San Jose Mercury News, April 8, 1996
HEADLINE: A BEEP IN TIME PAGER INDUSTRY HOPES
TO QUENCH INSATIABLE THIRST FOR NEWS
“… services on her pager: one devoted to
business news, a second for national events and
two sports services. (The sports wires are so
she can increase her knowledge in football and
baseball to impress her husband.”
• The Washington Post, September 21, 1995
HEADLINE: Getting Your Kicks On-Line
“I then went into CompuServe’s Executive News
Service, which offers the Reuter sports wire.
It carries match reports and soccer new stories
from Europe and South America.”
• Hartford Courant, November 8, 1994
HEADLINE: ESPN AGREES TO BUY 80% OF
SPORTSTICKER OPERATIONS
“ESPN Inc. said Monday it has agreed to acquire
80 percent of a New Jersey sports wire service
that provides scores, news, features and other
information.”
• The Hollywood Reporter, November 8, 1994
states “SportTicker has three products: a
sport wire that transmits scores and
information to newsrooms…”
• Network World, October 18, 1993
HEADLINE: The wireless yankee; Second baseman
uses wireless to conduct business
“Kelly also uses the virtual office as a
competitive weapon. With access to Compuserve,
Ser No. 76391084
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he can tap sports-wire transmissions that show
which players are going on the disabled list or
which are being brought up from the minor
league.
• The Washington Post, July 4, 1987
HEADLINE: Where Baseball Is a Diamond In the
Rough
“In fact, when the score was transmitted on the
sport wires that night, it was followed by the
parenthetical note: “(NOT A FOOTBALL SCORE).”
• Arkansas Democrat-Gazette, May 30, 1985
states: “The service will provide more than 10
million words daily from the United Press
International, the Associated Press, business
and sports wires, the National Weather Service
and feature news services.”

With respect to the first part of the Marvin Ginn
inquiry, we find in this case that the genus of services is
commensurate with applicant’s recitation of services in the
application, i.e., “electronic transmission of sports
information onto electronic displays and scoreboards.”
Contrary to the examining attorney’s contention, the
evidence of record plainly demonstrates that applicant’s
transmission of sports information is limited to electronic
displays and scoreboards.
With respect to the second part of the Marvin Ginn
inquiry – Is the term sought to be registered understood by
the relevant public primarily to refer to that genus of
services – we find that the evidence of record clearly
establishes that SPORTS WIRE is generic for a class or
category of services in the genus of “electronic
Ser No. 76391084
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transmission of sports information onto electronic displays
and scoreboards.” It is evident that the generic meaning
of the term “sports wire” encompasses services that are
provided directly to the general public, such as
applicant’s “electronic transmission of sports information
onto electronic displays and scoreboards.” That is,
applicant’s electronic transmission of sports information
allows scoreboard viewers at games and other sporting
events to view data initially transmitted by sports wire
services as if they were home on their own computers.
Applicant offered no evidence to rebut this finding.
Indeed, applicant’s specimen bolsters our conclusion that
the wording “sports wire” is incapable of identifying the
source of applicant’s services. Particularly, applicant’s
specimen of use consists of advertising literature for the
services. The advertising copy on the specimen provides
the following information with regard to applicant’s
services. The service includes the “[a]bility to monitor
all data transmitted by sports wire service,” “[a]utomatic
download and storage of the day’s scheduled games as sent
by the sports wire service” and “[a]utomatic update of game
scores as sent by sports wire service.” The specimen also
states that the “satellite dish, receiver, cabling between
dish and receiver, and cabling from receiver to interface
Ser No. 76391084
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computer to be provided by sport wire service provider.”
Notably, the wording “sports wire” appears in standard
font, is not capitalized, and contains no reference to the
registration or TM symbol. Moreover, “sports wire” refers
generically to the provider of the information transmitted
by applicant or to applicant’s services, which applicant
describes as “‘wire service transmission of software
programs’ directly and only available from the
Applicant/Assignee, Daktronics, Inc.” (Response to the
first Office action p. 2).
Quite simply, the record establishes without question
that SPORTS WIRE is generic for “electronic transmission of
sports information onto electronic displays and
scoreboards.”
We now consider whether applicant’s applied-for mark
as it appears on the drawing page is the same, or
substantially the same, mark that appears on the specimen
of record. The mark as shown in the drawing page is
. The mark as shown on the specimens is
. These two depictions are clearly not
the same. As depicted in the drawing, applicant’s mark is
comprised of black, medium width letters, featuring
distinctive gray shading. However, the lettering in the
Ser No. 76391084
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mark displayed on the specimens is wider and includes what
appears to be a fanciful newsprint design. We thus find
that the specimen does not show the mark as it appears on
the drawing page.
Decision: The refusals to register under Trademark
Act Section 23 and for applicant’s failure to submit a
specimen that shows the mark as it appears on the drawing
page are affirmed.