Fun Factory, Inc.

Trademark Trial and Appeal Board

Aug 6, 1997

EX (T.T.A.B. Aug. 6, 1997)

THIS DISPOSITION IS NOT CITABLE
AS PRECEDENT OF THE TTAB AUG 6, 97
Hearing: Paper No. 17
December 10, 1996 EWH/King
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Fun Factory, Inc.
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Serial No. 74/433,460
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Gary M. Nath of Nath & Associates for Fun Factory, Inc.
Zhaleh Sybil Delaney, Trademark Examining Attorney, Law
Office 101 (Ron Williams, Managing Attorney)
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Before Cissel, Hanak and Quinn, Administrative Trademark
Judges.
Opinion by Hanak, Administrative Trademark Judge:
Fun Factory, Inc. (applicant) seeks registration of
CARROUSEL PARK for "indoor amusement centers." The intent-
to-use application was filed on September 7, 1993.
The Examining Attorney refused registration pursuant to
§ 2(e)(1) of the Lanham Trademark Act on the basis that
applicant's mark is merely descriptive of applicant's
services.
When the refusal was made final, applicant appealed to
this Board. Applicant and the Examining Attorney filed
briefs and were present at a hearing held December 10, 1996.
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Before discussing the merits of this case, one
procedural matter should be dealt with. Applicant attached
to its appeal brief exhibits A-H. These exhibits were not
previously made of record by applicant, and in her appeal
brief, the Examining Attorney properly objected to their
introduction into evidence. However, at the oral hearing,
the Examining Attorney waived her objection. Hence, in
reaching our decision, we have considered exhibits A-H.
Exhibits A is a picture of the outside of applicant's indoor
amusement center. Exhibits B-G are pictures of various
locations inside applicant's indoor amusement center.
Finally, exhibit H is a flyer announcing that applicant's
indoor amusement center offers birthday packages.
Considering first the PARK portion of applicant's
purported mark, applicant argues that this term is not
descriptive of applicant's indoor amusement centers because
the term "can denote ball park, city park, parking lot,
playground, national park, skateboard park, etc."
(Applicant's brief page 8). However, what applicant fails
to recognize is that the descriptiveness of the term PARK in
applicant's purported mark is not determined in the
abstract, but rather is determined in relation to the goods
or services for which registration is sought. In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA
1978). The Examining Attorney has made of record dictionary
definitions showing that one of the definitions of the term
"park" is "an area set aside for a particular commercial
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use: specif., a) amusement park..." Webster's New World
Dictionary (3d ed. 1994). Moreover, the Examining Attorney
has made of record numerous stories from the NEXIS database
wherein the term "indoor amusement park(s)" appears. Thus,
when used in conjunction with an indoor amusement center or
indoor amusement park, the term PARK is, at the very
minimum, highly descriptive of such services.
Considering next the term CARROUSEL in applicant's
purported mark, applicant argues that said term is not
descriptive of its indoor amusement centers by making the
following statements as pages 7 and 8 of its brief:
Applicant uses CARROUSEL PARK to
identify an indoor amusement
center consisting of nine rides,
a food service center, party
area, showroom, arcade games
and video games.... Out of all
these activities, there is one
carrousel among the nine rides.
Rides comprise an insufficient
component of the part [sic],
merely one of at least six
distinct activities, including
a party area, a food services
area, a showroom, arcade games
and video games. The mark does
not convey information about any
of these services and therefor
is not descriptive. Indeed, if
we calculate mathematically the
significance of a carrousel as
a proportion of the overall services
offered by applicant as described
in the record, the carrousel is
1/9 of the rides which in turn
represent about 1/6 of the overall
operation. This means that the
carrousel ride itself represents
at best 1/54th of the range of
applicant's services performed
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at the CARROUSEL PARK. As
such, "carrousel", at best,
is descriptive of 1/54th
of the activities offered at
CARROUSEL PARK.
There is a fundamental flaw in applicant's reasoning.
Applicant is attempting to have the discriptiveness of the
term CARROUSEL judged not by the services as described in
the application (indoor amusement centers), but rather by
the services which applicant purportedly offers. As our
primary reviewing Court has stated, "the authority is legion
that the question of registrability of an applicant's mark
must be decided on the basis of the identification of goods
[or services] set forth in the application regardless of
what the record may reveal as to the particular nature of
applicant's goods [or services]." Octocom Systems Inc. v.
Houston Computers Services Inc., 918 F.2d 737, 16 USPQ2d
1783, 1787 (Fed. Cir. 1990). In upholding the Board's
decision refusing registration of the term SCANNER for
"antennas" on the ground that the mark is merely descriptive
of said goods, the Court rejected applicant's argument that
its particular antennas were not scanning antennas. In so
doing, the Court noted that "trademark [and service mark]
cases must be decided on the basis of the identification of
the goods [or services] as set forth in the application."
Continuing, the Court noted that "since the goods are
described merely as 'antennas' and that term is broad enough
to encompass 'scanning antennas,' the mark SCANNER as
applied to the goods is merely descriptive." In re Allen
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Electric & Equipment Co., 458 F.2d 1404, 173 USPQ 689, 690
(CCPA 1972). Indeed, applicant itself in its reply brief
acknowledges this principle by stating that "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." (Applicant's reply brief page 4, emphasis
added).
Thus, the fact that in reality a carrousel purportedly
constitutes a small part of applicant's indoor amusement
centers is an irrelevant point. Applicant's description of
services reads simply "indoor amusement centers." The term
"indoor amusement centers" is broad enough to include
centers which prominently feature carrousels, or indeed
which feature only carrousels. At page 10 of its brief,
applicant even acknowledges that "if the term CARROUSEL PARK
immediately evoked an image, at best it would be an image of
a park full of carrousels."
In short, we find that the term CARROUSEL PARK when
used in conjunction with "indoor amusement centers"
immediately conveys to consumers information about the
centers, namely, that they are parks (centers) featuring a
carrousel(s). The fact that in reality applicant's
particular indoor amusement centers do not purportedly
feature a carrousel is irrelevant inasmuch as the
descriptiveness of a term must be judged in relationship to
the goods or service for which registration is sought.
Moreover, in reviewing exhibits A-H attached to applicant's
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brief, we find that said exhibits demonstrate that a
carrousel is a prominent feature of applicant's indoor
amusement centers, and thus the term CARROUSEL PARK is even
descriptive of applicant's particular indoor amusement
centers. Exhibit A shows the outside of applicant's
CARROUSEL PARK. Looking in the windows, one can see the
carrousel located near the entrance to applicant's CARROUSEL
PARK . Exhibit D shows not only the carrousel as seen from
the inside, but in addition, it shows that a carrousel motif
is utilized to decorate applicant's gift shop. Finally,
reviewing the birthday flyer for applicant's CARROUSEL PARK
(exhibit H), we note that immediately beneath the words
CARROUSEL PARK at the top of the flyer there appears a
picture of a wooden horse on a carrousel. Hence, a review
of applicant's own exhibits undercuts applicant's contention
that a carrousel forms an insufficient part of applicant's
indoor amusement centers.
Decision: The refusal to register is affirmed.
R. F. Cissel

E. W. Hanak
T. J. Quinn
Administrative Trademark
Judges, Trademark Trial
and Appeal Board
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