Ticket.com

Trademark Trial and Appeal Board

Sep 25, 2001

No. 75565599 (T.T.A.B. Sep. 25, 2001)

9/25/01
Paper No. 14
DEB

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Tickets.com
________

Serial No. 75/565,599
_______

Michelle D. Kahn and Michelle Howard MacKenzie of Sheppard
Mullin Richter & Hampton, LLP for Ticket.com .

Scott Baldwin, Trademark Examining Attorney, Law Office 112
(Janice O’Lear, Managing Attorney).
_______

Before Hanak, Quinn and Bucher, Administrative Trademark
Judges.
Opinion by Bucher, Administrative Trademark Judge:
Ticket.com seeks to register on the Principal Register

for “online information services, namely, the provision of
information relating to travel via global computer network,”
in International Class 39; “online information services,
namely, the provision of information relating to shows and
other entertainment events via global computer network,” in
International Class 41; and “online travel agency services,
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Serial No. 75/565,599
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namely making reservations and bookings for temporary lodging
via global computer network,” in International Class 42.1
The Trademark Examining Attorney has refused registration
under Section 2(e)(1) of the Trademark Act, 15 U.S.C.
§1052(e)(1), on the grounds that the entire composite mark
applicant seeks to register is merely descriptive as applied
to the identified services.2

1 Application Serial No. 75/565,599, filed on October 6, 1998,
based upon applicant’s allegation of use in commerce since August 1,
1997.
2 Applicant’s original recitation of services was “on-line
ticketing services, namely, travel agency services, ticket agency
services and the provision of information relating to events, travel
or tickets via a global computer network, in International Class
42.” In response to the Trademark Examining Attorney’s requirement
to amend its recitation of services, applicant amended its recital
to “online travel agency and travel information services, namely,
making reservations and bookings for transportation and the
provision of information related to travel, all via global computer
network,” in International Class 39; “online ticketing and
information services, namely, arranging for tickets for shows and
other entertainment events and the provision of information relating
to shows and other entertainment events, all via global computer
network,” in International Class 41; and “online travel agency
services, namely, making reservations and bookings for temporary
lodging via global computer network,” in International Class 42.
The Trademark Examining Attorney appeared to accept this amended
recitation at the time of the final refusal. Then, with the request
for reconsideration on the issue of mere descriptiveness, applicant
submitted the current recitation, which the Trademark Examining
Attorney also accepted.
Finally, in an earlier response to an Office action, applicant
had indicated a willingness to disclaim the prefix (“1•800”) portion
of the mark “ … in the event the Examining Attorney considers the
telephone area-code designation descriptive of services offered via
the Internet.” However, by the time of the appeal brief, this offer
had been withdrawn.

Serial No. 75/565,599
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Applicant has appealed. Both applicant and the Trademark
Examining Attorney have filed briefs, but applicant did not
request an oral hearing. We affirm the refusal to register.
It is the Trademark Examining Attorney’s position that
the word TICKETS is merely descriptive of a feature or
characteristic of applicant’s online services. Applicant’s
home page (http://www.tickets.com/) is included as a specimen
of record, and the words “ticket,” “tickets” and “ticketing”
occur in the ordinary sense of those words more than a dozen
times on applicant’s home page alone.
Applicant, on the other hand, in urging reversal of the
refusal to register, argues that the prefix (“1-800”) portion
of this mark cannot be held merely descriptive of services
offered via the Internet. Furthermore, applicant argues that
inasmuch as its amended recitation of services excludes all
the specific references to actual ticketing services, the word
“Tickets” is not merely descriptive of its various “online
information services.”
In response to this argument, the Trademark Examining
Attorney states the following:
… [A]pplicant’s current recitation of services
is clearly broad enough to include the
“provision of ticketing information … [in
classes 39 and 41].” (emphasis in original).

Serial No. 75/565,599
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In addition to arguing that alpha-numerics are merely
descriptive of services when first used as a service mark qua
vanity telephone number, the Trademark Examining Attorney also
argues that the same matter does not become inherently
distinctive just because the services are provided via the
Internet.
The test for determining whether a mark is merely
descriptive is whether the involved 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 intended to be
used. In re Engineering Systems Corp., 2 USPQ2d 1075 (TTAB
1986); In re Bright-Crest, Ltd., 204 USPQ 591 (TTAB 1979). It
is not necessary, in order to find a mark merely descriptive,
that the mark describe each feature of the goods or services,
only that it describe a single significant quality, feature,
etc. of the goods or services. In re Venture Lending
Associates, 226 USPQ 285 (TTAB 1985). Further, it is well-
established that the determination of mere descriptiveness
must be made not in the abstract or on the basis of guesswork,
but in relation to the goods or services for which
registration is sought, the context in which the mark is used,
and the impact that it is likely to make on the average
Serial No. 75/565,599
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purchaser of such goods or services. In re Recovery, 196 USPQ
830 (TTAB 1977).
In turning first to the alpha or letter portion of this
alleged mark (the word “tickets”), we find from this record
that the evidence is overwhelming that the word “tickets” is
merely descriptive of applicant’s services, even after all the
earlier “ticket” and “ticketing” language has been scrubbed
from the recitation of services.3
In the context of the entirety of the applied-for mark
[1•800•TICKETS (stylized)], we begin with the observation that
actual vanity telephone numbers like the alleged mark at issue
herein are not considered to be inherently distinctive matter,
even when used in advertising, for example, in the form of a
service mark. Rather, this alleged mark is deemed to be
merely descriptive because it immediately conveys the
impression that a service relating to tickets is available by
calling the toll free telephone number. See In re Dial-A-
Mattress Operating Corp., 240 F.3d 1341, 57 USPQ2d 1807, 1812
(Fed. Cir. 2001)) [Applicant’s “1•888•MATRESS” mark is merely
descriptive of applicant’s service offering mattresses by
telephone because it immediately conveys the impression that a

3 The specimens of record, for example, shown on page 6, supra,
contain the word “Ticket” or “Tickets” three times within the three
distinct pockets of information or alleged trademarks shown thereon.

Serial No. 75/565,599
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service relating to mattresses is available by calling the
telephone number.] We must also consider the impact that this
matter is likely to make on the average purchaser of such
services. In considering closely the specimens of record, we
note that the particular manner in which this vanity telephone
number is stylized (viz., the raised dots, the “1-800”
numerical prefix being somewhat smaller than the letter
portion of the vanity telephone number) accentuates its look
and feel as a telephone number:
4
It also is clear from this record that even if “services
offered via the telephone” are not part of the instant
recitation, applicant indeed uses and promotes toll free
telephone numbers like 1-888-TICKETS and 1-800-TICKETS for

4 Upon viewing the above image from the specimens of record, one
could even argue that because the telephone number is subordinate to
applicant’s prominently displayed house mark, this matter will be
perceived as nothing more than a telephone number, and not as a
service mark at all. However, inasmuch as this was not litigated,
we assume the Trademark Examining Attorney decided that the vanity
telephone number would indeed be perceived as a service mark in this
context. Arguably this is analogous to reported cases from the
Board and our reviewing Court on trade name usage. In those cases,
Serial No. 75/565,599
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ticketing services related to the upcoming Winter Olympic
games.5 Nonetheless, applicant argues that the Dial-a-Mattress
case, supra, is not controlling in the instant case because
the recitation of services herein does not include services
being offered over the telephone:
Applicant’s mark … is far different form the
mark at issue in In re Dial a Mattress
Operating Corp. Most significantly, unlike the
applicant in In re Dial a Mattress Operating
Corp., Applicant is not seeking to register its
mark for use in connection with goods or
services offered via the telephone. Rather,
Applicant is seeking to register its mark only
in connection with services accessed via the
Internet. An area code designation cannot
seriously be considered descriptive of online
services. Indeed, no reasonable consumer would
ever assume that such service are available
under a mark that includes the toll-free area
code designation “1•800” and does not include
the term “.com.” Thus, the prefix portion of
Applicant’s mark does not describe the relevant
services and is, at the very least, suggestive
of online services.

(Applicant’s appeal brief, p. 5).

the trade name, as used in context, may well not be perceived as a
source indicator but merely as part of a company’s name and address.
5 Applicant promotes its connection with the Salt Lake Organizing
Committee for the Olympic Games ("SLOC") for those wanting to order
tickets for the 2002 Winter Olympic:

QUESTIONS: 1-888-tickets
www.ksl.com/TV/olympics/2002/tix1009.php
and
STILL HAVE A QUESTION?
Call 1-800-TICKETS between 10 a.m. and 8 p.m. (Mountain Time)
Monday through Friday, excluding holidays, or Saturday between
10 a.m. and 6 p.m., you will be able to speak directly with a
customer service representative.
http://www.tickets.com/olympics/single_questions.html
Serial No. 75/565,599
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In response to applicant’s contention that “[a]pplicant
is not seeking to register its mark for use in connection with
goods or services offered via the telephone,” the Trademark
Examining Attorney has shown that this matter doubles as a
URL. If one types into one’s Web browser
http://www.1800tickets.com/, one will end up at
http://www.tickets.com/, with the following masthead:

Hence, applicant has matter (“1•800•TICKETS”) that looks like
a vanity telephone number, and indeed functions as such in
ordering tickets for the Salt Lake Olympic Winter Games. This
same matter, comprising eleven alpha-numeric characters, also
serves as a second-level domain name, taking one to
applicant’s home page on the Internet. On this page, one
again finds quite prominently displayed ways to order tickets,
inter alia, for the Salt Lake Olympic games.
Accordingly, if this matter is viewed as a source
indicator at all, we agree with the Trademark Examining
Attorney that consumers are likely to understand, from the
term 1•800•TICKETS, that at the very least, applicant offers a
variety of mutually-reinforcing means for providing
prospective customers with information about various kinds of
tickets. The specimens of record demonstrate that applicant
Serial No. 75/565,599
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provides ticketing news as well as actual tickets through its
Web site. Tickets and ticket information are a significant
characteristic of applicant’s services.6 While applicant has
amended its recitation of services to delete reference to the
words “ticket” and “ticketing,” applicant had earlier conceded
that this is an aspect of its services:
As applied to actual ticketing services,
Applicant’s mark arguably may be construed as

6 To quote from applicant’s Web site (emphasis supplied):

Welcome!

We founded Tickets.com in 1996 to fundamentally change the
sports and entertainment ticket industry by empowering you -
the consumer. We're building a new kind of organization
dedicated to the principle that purchasing tickets for a great
event should be quick, convenient and reliable.

Our mission is to leverage the power of the Internet to create
the most compelling ticketing solutions for consumers, venues,
promoters, and artists. By building strong relationships with
arenas, concert halls, performers, and sports teams, we're
eliminating the complicated and frustrating process normally
associated with purchasing tickets. And, if you’re looking for
something that we don't happen to offer, we'll put you in a
position to purchase the tickets - even if that means sending
you directly to our competition.

Perhaps the most exciting feature we offer is our personalized
tool My Tickets. Give us your preferences in sports,
entertainment, and other special events and we’ll keep track of
it all for you. We’ll even send you e-mail reminders when your
favorite events are coming up.

Thanks for your interest in this exciting challenge. We hope
you'll join us in revolutionizing the way the world buys
tickets.

Kind regards,

Tom Gimple
Chief Executive Officer
http://www.tickets.com/aboutus.html

Serial No. 75/565,599
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descriptive. Accordingly, if deletion of
Applicant’s ticketing services from the
recitation of services would cure the perceived
descriptiveness of that term, Applicant would
be willing to so amend its Application …

(Applicant’s response of January 3, 2000, p. 4, fn 1).
The fact that applicant’s Web site provides ticketing
information and makes tickets available online is certainly
not negated merely because the current recitation of services
no longer specifies this aspect of applicant’s services.
Moreover, it is clear that at the very least, the offering of
ticketing news is encompassed within applicant’s services,
even as currently identified.
This matter has the look and feel of a vanity telephone
number. Yet applicant would have us find that this matter
actually functions as an arbitrary source indicator when it
appears on the masthead of applicant’s pages on the Internet.
Furthermore, we are told that it is irrelevant to our inquiry
herein that this matter actually functions as a telephone
number (1-800-TICKETS), where live operators provide ticketing
information and facilitate the actual purchase of tickets.
Secondly, we are told that it is irrelevant to our inquiry
herein that this matter actually functions as a second-level
domain name within a URL (www.1800tickets.com), which site is
also designed to provide ticketing information and facilitate
actual ticketing. Finally, in spite of applicant’s having
Serial No. 75/565,599
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scrubbed the recital of services to remove the words “ticket,”
“tickets” and “ticketing,” the record demonstrates that
“tickets” are indeed the primary purpose of the Web site as
well as the vanity telephone number.
Accordingly, to the extent the term 1•800•TICKETS
functions as a service mark at all, when applied to
applicant’s services it immediately describes, without
conjecture or speculation, a significant feature or
characteristic of applicant’s services. In particular, it
consists of a familiar and structured mnemonic that functions
as a telephone number and also as a Web address, both of which
provide information about the availability of “tickets” for
sporting and other entertainment events. Nothing requires the
exercise of imagination, cogitation, mental processing or
gathering of further information in order for prospective
customers of applicant’s services to readily perceive the
merely descriptive significance of the term 1•800•TICKETS as
it pertains to applicant’s services. See In re Dial-A-
Mattress Operating Corp., supra.
Finally, late in the appeal process, applicant submitted
thirteen specifically-identified, third-party registrations it
argues are relevant to the merits of this case.7 As noted by

7 In a companion case (Application Serial No. 75/565,580),
applicant also asked for a suspension of the appeal based on these
Serial No. 75/565,599
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the Trademark Examining Attorney, third-party registrations
are not conclusive on the question of descriptiveness. We
must decide each case on its own merits. Even if some prior
registrations had some characteristics similar to the present
application, the Office’s allowance of such prior
registrations does not bind the Board or our reviewing Court.
In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566
(Fed. Cir. 2001); and In re Owens-Corning Fiberglas Corp., 774
F.2d 1116, 1127, 227 USPQ 417, 424(Fed. Cir. 1985).
Furthermore, the only mark analogous to applicant’s mark
herein is 1-800 GET LOAN, for “mortgage brokerage and
lending.” Even 1-800-FLOWERS.COM is a hybrid, comprising a
well known vanity telephone number with a clear indication of
being the URL for applicant’s Web site. Yet both of these
marks were registered pursuant to Section 2(f) of the
Trademark Act. Such registrants have essentially conceded
that the matter to which it pertains was not inherently
distinctive (and thus not registrable absent a showing of
acquired distinctiveness).
In conclusion, we find that prospective customers of
applicant’s services will readily perceive the merely

newly-issued registrations. In that case, the Trademark Examining
Attorney considered these registrations and was not persuaded by
them. Accordingly, we are proceeding to final decision in the
instant appeal without imposing further delay.
Serial No. 75/565,599
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descriptive significance of the term 1•800•TICKETS as it
pertains to applicant’s services.
Decision: The refusal to register is affirmed.