Boyd Gaming Corp.

Trademark Trial and Appeal BoardJul 27, 2009

No. 77186399 (T.T.A.B. Jul. 27, 2009)

Mailed: July 27, 2009 jtw UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re Boyd Gaming Corp. ________ Serial No. 77186399 _______ Wesley L. Austin of Austin Rapp & Hardman for Boyd Gaming Corp. Jeffrey S. DeFord, Trademark Examining Attorney, Law Office 115 (Tomas V. Vlcek, Managing Attorney). _______ Before Hairston, Bucher and Walsh, Administrative Trademark Judges. Opinion by Walsh, Administrative Trademark Judge: Boyd Gaming Corp. (applicant) has applied to register the mark FREE SLOT PLAY, ALL DAY, EVERY DAY in standard characters on the Principal Register for services identified as “casinos; conducting and providing facilities for special events featuring casino and gaming contests and tournaments” in International Class 41.1 1 Application Serial No. 77186399, filed May 21, 2007, based on applicant’s statement of a bona fide intention to use the mark in commerce under Trademark Act Section 1(b), 15 U.S.C. § 1051(b). THIS OPINION IS NOT A PRECEDENT OF THE T.T.A.B. Serial No. 77186399 2 The Examining Attorney has issued a final refusal on the grounds that the FREE SLOT PLAY, ALL DAY, EVERY DAY mark merely describes the identified services under Trademark Act Section 2(e)(1), 15 U.S.C. § 1052(e)(1). Both applicant and the Examining Attorney have filed briefs. We affirm. A term is merely descriptive of services within the meaning of Section 2(e)(1) if it conveys an immediate idea of a quality, characteristic, feature or purpose of the services. See, e.g., In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009 (Fed. Cir. 1987); In re Abcor Development Corp., 588 F.2d 811, 200 USPQ 215, 217-18 (CCPA 1978); In re Carlson, 91 USPQ2d 1198, 1199 (TTAB 2009). A term need not immediately convey an idea of each and every specific feature of the applicant’s services to be considered merely descriptive; it is enough that the term describes one significant attribute or feature of the services. See In re H.U.D.D.L.E., 216 USPQ 358, 359 (TTAB 1982); and In re MBAssociates, 180 USPQ 338, 339 (TTAB 1973). Also, we must determine whether a term is merely descriptive, not in the abstract, but in relation to the services identified in the application. We must consider the possible significance that the term would have to the Serial No. 77186399 3 average purchaser or user of those services. In re Polo International Inc., 51 USPQ2d 1061, 1062 (TTAB 1999); and In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979). The Examining Attorney argues, “Applicant’s proposed mark FREE SLOT PLAY, ALL DAY, EVERY DAY merely describes a feature and/or characteristic of the applicants (sic) casino and casino and gaming contests and tournaments. … As applied to applicant’s services, the proposed mark merely refers to a feature or characteristic of applicant’s casino and special events in which patrons may enjoy playing slot machines at no cost, for the duration of the day, any day of the week.” Examining Attorney’s Brief at 4. To support his position, the Examining Attorney submitted dictionary definitions to demonstrate the common meanings of the terms in the mark. There is no serious dispute as to the meaning of the SLOT PLAY, ALL DAY or EVERY DAY components of the mark. To the extent applicant and the Examining Attorney argue that FREE does or does not possesses a particular meaning in this context, the dictionary definitions are not particularly useful or even necessary in addressing those arguments. Consequently there is no need to recite the dictionary definitions. More to the point, the Examining Attorney has provided examples of the use of FREE SLOT PLAY by numerous third Serial No. 77186399 4 parties in relation to slot machine services rendered in connection with casinos. With his response denying applicant’s request for reconsideration, dated January 13, 2009, the Examining Attorney provided examples of the use of FREE SLOT PLAY from the following websites: cvinn.com – a site connected with the Carson Valley Inn offering “$5 Free Slot Play”; cheapatlanticcity.com – a site promoting Atlantic City casinos with an item headline stating, “Trump Plaza and Taj Mahal Free slot play”; stationcasinos.com – a site connected with Station Casinos displaying a promotion stating, “The Free Slot Play is endless”; and doverdowns.com – a site connected with Dover Downs Hotel and Casino displaying a promotion stating, “Celebrate a new year with January Power Jackpots and you could win cash or FREE SLOT PLAY!!!” With his final refusal, dated April 21, 2008, the Examining Attorney had also provided other examples of the use of FREE SLOT PLAY from the following websites: bigempire.com – connected with a visitor’s site identified as “Las Vegas Free Crap,” which states, “Visit the visitor’s centers in town and pick up all the free magazines (at the airport, in mediocre hotels’ lobbies, at the rental car place). These are going to have coupons for free stuff like decks of cards, free hot dogs, free slot play and occasionally a free kidney from the local hospital.”; the site includes two other similar references to “free slot play”; greenvalleyranchresort.com – a site connected with Green Valley Ranch (Las Vegas), stating, Serial No. 77186399 5 “Every time the Jumbo Jackpot hits at any Station casino, EVERYONE playing with their card at that location wins $25 in FREE SLOT PLAY - GUARANTEED!” and the site includes ten additional similar references to “FREE SLOT PLAY”; goldentigercasino.com – a site connected with the Golden Tiger online casino, stating, “Golden Tiger Online Casino offers 1 hour of free slot play plus a deposit bonus of up to $250.”; and slotmachine.blog-br.com – a site promoting casinos, states, “5¢free Slot Play5¢.” and the site includes four additional similar references to “free slot play.” On the other hand, applicant argues that FREE SLOT PLAY, ALL DAY, EVERY DAY is suggestive, not merely descriptive. More specifically, applicant argues: To be merely descriptive of the services, the services would need to be provided at no cost, in all situations (i.e., all day, every day). In other words the services would need to be costless services. However, Applicant’s business of running a casino and providing a facility for events is to generate revenue, not to provide an entirely free service to the public. A descriptive term immediately tells something about the goods and services. FREE SLOT PLAY, ALL DAY, EVERY DAY does not immediately tell something about the services because the services are not providing “free” gaming contests or “free” casino services. Thus, although the words “slot” and “play” have some meaning in the gaming industry, because FREE SLOT PLAY, ALL DAY, EVERY DAY does not convey a significant ingredient, quality or characteristic of the services but merely suggests some relation to slots without telling anything about the services, FREE SLOT PLAY, ALL DAY, EVERY DAY is not merely descriptive. Applicant’s Brief at 4-5. Serial No. 77186399 6 Applicant also argues that FREE SLOT PLAY, ALL DAY, EVERY DAY is a double entendre because “free” could have multiple meanings in this context, for example, “costing nothing” or “without restriction” or “not blocked” or “open and available for play.” Id. at 6. Applicant focuses further on the term “free” in arguing that the nuances in meaning of this term will trigger a complex mental process in potential consumers. Applicant states, “Accordingly, consumers will try to understand how, in the gaming world, anything can truly be ‘free.’ They will begin to recognize the other meanings of free--i.e., ‘without restriction’ or ‘not blocked’ (i.e., slots can be played without restriction) or that the machine is ‘open’ (i.e., that there are open machines so that a consumer can walk in, sit down, and begin to play). Other consumers will be intrigued and will want to learn more about how the slots can truly be ‘free.’” Id. at 8-9. Applicant also submitted copies of thirty third-party registrations for marks which include SLOT or SLOTS in some form. Applicant offers the following enigmatic statement with regard to these registrations: “Thus while these marks are not probative, they do provide some frame of reference regarding the word ‘SLOT’ and how this word is perceived by consumers.” Id. at 5. Serial No. 77186399 7 Based on the record in this case, we conclude, without hesitation, that FREE SLOT PLAY, ALL DAY, EVERY DAY is merely descriptive of “casinos; conducting and providing facilities for special events featuring casino and gaming contests and tournaments.” In re Promo Ink, 78 USPQ2d 1301 (TTAB 2006) (PARTY AT A DISCOUNT! held merely descriptive of preparation and dissemination for others of advertising and promotional matter via global computer communications networks in the field of shopping for goods and services); In re The Place, Inc., 76 USPQ2d 1467 (TTAB 2005) (THE GREATEST BAR held merely descriptive of restaurant and bar services). See also In re Associated Theatre Clubs Co., 9 USPQ2d 1660 (TTAB 1988) (GROUP SALES BOX OFFICE held generic for theater ticket sales services). In presenting its varied arguments regarding FREE SLOT PLAY, the focus of its overall argument, applicant makes no mention whatsoever of the Examining Attorney’s evidence of third-party use of the term FREE SLOT PLAY. We need not resort to definitions in general dictionaries to determine what FREE SLOT PLAY means in the context of casino services. The evidence shows that FREE SLOT PLAY is a designation used to describe a feature of casino services. It is apparent that there may be certain “conditions” attendant to the offer of the FREE SLOT PLAY Serial No. 77186399 8 feature/service and that those “conditions” may vary. The evidence shows that consumers may need to do something to qualify for these services, for example, by subscribing to some form of membership, by winning a drawing or jackpot, or even by paying a flat fee. These varying conditions in no way detract from the descriptive significance of FREE SLOT PLAY, as used in relation to casino services. The essence of the service is that an eligible consumer may play on one or more slots without paying for each play. The service may be limited to certain times or duration, or in the case of applicant’s service, it may be ALL DAY, EVERY DAY. Nowhere in the record has applicant revealed exactly how it intends to render its FREE SLOT PLAY service. More importantly, nowhere has applicant contradicted the fact that its service will be available ALL DAY, EVERY DAY, nor that its service would permit an eligible consumer to play its slots without paying for each play. We likewise reject applicant’s argument that FREE is not descriptive here because applicant operates its casino to generate revenue, not to provide free services. The FREE SLOT PLAY, ALL DAY, EVERY DAY mark is applied to a distinct service within the casino. The evidence shows that relevant consumers would well understand that this Serial No. 77186399 9 FREE service is being offered along with other revenue- generating services and that the revenue-generating services may even be linked to the FREE SLOT PLAY service. More generally, we find applicant’s arguments that “FREE” is ambiguous, and therefore suggestive, in this context disingenuous in view of the evidence. On the same grounds, we reject applicant’s argument that the FREE SLOT PLAY, ALL DAY, EVERY DAY mark would be perceived as a double entendre, and therefore be considered suggestive. FREE SLOT PLAY, ALL DAY, EVERY DAY is in no way like any of the marks in the cases cited by applicant finding a mark distinctive because it projects s double entendre. See, e.g., In re Grand Metropolitan Foodservice Inc., 30 USPQ2d 1974 (TTAB 1994) ( held not merely descriptive for mini-muffins due to double entendre). As the Examining Attorney correctly points out, each of the “alternative” meanings applicant suggests for the FREE SLOT PLAY component of its mark is merely descriptive.2 Therefore, there is no double entendre in applicant’s mark of the sort that the cases recognize due to the absence of an alternative meaning for FREE SLOT PLAY which is not descriptive. 2 We dismiss applicant’s objection to the Examining Attorney’s assertion of this argument. We find no legitimate basis for the objection. Serial No. 77186399 10 With regard to the numerous other cases applicant has cited and discussed, for completeness, we note here that we have considered the cases and find applicant’s arguments based on those cases unpersuasive. Also, we reject applicant’s argument based on the third-party registrations. As we noted, applicant correctly observes that they are not probative. In fact, the marks in all of the thirty registrations include an element other than SLOT or SLOTS which appears to be sufficient to render the entire mark distinctive, for example, PASSION SLOTS, PARTYSLOTS, CHAMPAGNE SLOTS, HOLLYWOOD SLOTS, and SLOT JOCKEY. Furthermore, as the Examining Attorney states, we must decide each case on its unique facts and record. Actions by examining attorneys in other applications do not dictate our determination in this case. In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001). Accordingly, we reject applicant’s arguments based on these third-party registrations. Lastly, in its Reply Brief, at page 4 n.2, applicant asks us to strike certain arguments the Examining Attorney raised comparing applicant’s mark to other “hooks” used in marketing, such as, “Buy One Get One Free.” We decline to Serial No. 77186399 11 strike this argument although we have not relied on it in reaching our decision here. In sum, we find no winning arguments among the many that applicant presents. We conclude that FREE SLOT PLAY, ALL DAY, EVERY DAY is merely descriptive of “casinos; conducting and providing facilities for special events featuring casino and gaming contests and tournaments.” Decision: We affirm the refusal under Trademark Act Section 2(e)(1).