Extra Chance Blackjack, LLC

Trademark Trial and Appeal Board

Dec 17, 2002

No. 76012889 (T.T.A.B. Dec. 17, 2002)

Mailed: December 17, 2002
Paper No. 13
BAC
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Extra Chance Blackjack, LLC
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Serial No. 76/012,889
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Jodi-Ann McLane of Salter & Michaelson for Extra Chance
Blackjack, LLC.
Andrew L. Rhim, Trademark Examining Attorney, Law Office
107 (Thomas Lamone, Managing Attorney).
_______
Before Simms, Chapman and Drost, Administrative Trademark
Judges.
Opinion by Chapman, Administrative Trademark Judge:
On March 29, 2000, Extra Chance Blackjack, LLC (a
Massachusetts limited liability company) filed an
application to register the mark EXTRA CHANCE BLACKJACK on
the Principal Register for services amended to read
“providing a side bet in the card game commonly known as
‘Blackjack’ or ‘21’ or ‘Twenty-One’” in International Class
41. The application is based on applicant’s assertion of a
THIS DISPOSITION IS
NOT CITABLE AS PRECEDENT
OF THE TTAB
Ser. No. 76/012889
2
bona fide intention to use the mark in commerce.
The Examining Attorney refused registration on the
ground that applicant’s mark, EXTRA CHANCE BLACKJACK, is
merely descriptive of applicant’s services under Section
2(e)(1) of the Trademark Act, 15 U.S.C. §1052(e)(1).
When the refusal was made final, applicant appealed to
this Board. Both applicant and the Examining Attorney have
filed briefs; an oral hearing was not requested.
Applicant argues that because the phrase EXTRA CHANCE
BLACKJACK could be used to describe a variety of
goods/services within the gaming industry, “for example, a
slot machine blackjack game, a video blackjack game, a
scratch ticket for a lottery game, etc.” (brief, pp. 2-3),
it would require thought and perception in order to reach a
conclusion regarding applicant’s services; and that
therefore, the phrase is suggestive, not merely
descriptive.
The Examining Attorney contends that the words,
“extra,” “chance,” and “blackjack” are common English
words, with readily understood meanings; that the specific
nature of applicant’s gambling services is to provide the
consumer with an additional opportunity to win money,
making this phrase, EXTRA CHANCE BLACKJACK, descriptive of
a significant characteristic or feature of applicant’s
Ser. No. 76/012889
3
services; that no imagination, thought or perception is
required to reach the conclusion that applicant provides an
“extra chance” to win in the game of “blackjack”; and that
applicant’s argument that the words could relate to other
things, such as a slot machine blackjack game, a video
blackjack game or a scratch ticket in a lottery game is
immaterial in light of applicant’s identified services.
In support of the descriptiveness refusal, the
Examining Attorney has made of record the following
definitions from The American Heritage Dictionary (Third
Edition 1992):
(1) “extra adjective 1. more than or
beyond what is usual, normal,
expected, or necessary...,”
(2) “chance noun 4. a favorable set
of circumstances; an opportunity:
a chance to escape. 5. a risk or
hazard; a gamble...,” and
(3) “blackjack noun 3. Games. A
card game in which the object is
to accumulate cards with a higher
count than that of the dealer but
not exceeding 21....”
The Examining Attorney also submitted photocopies of
materials retrieved from the Nexis database to show that
card-playing consumers understand that there are many
opportunities, beyond the basic way to win money gambling
generally, and in particular, the game of blackjack offers
Ser. No. 76/012889
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various “side bets” which can be made such as “insurance,”
“doubling-down,” and “splitting pairs.” Some specific
examples of the generalized information stories are
reproduced below:
Headline: Resolutions Gamblers Can Take a
Chance On
...Stay away from longshot bets with bad
odds, such as one-way and hard-way bets in
craps; keno tickets; and most of the new
gimmick side bets in blackjack. “Milwaukee
Journal Sentinel,” January 14, 2001;
Headline: Marketing Is Hot Topic for
Gamblers
...That intimidating dice game’s raucous
table action and betting schemes scare off
most people. That’s why the industry was
introduced this year to “Crops,” a
simplified version of craps. They also saw
“Rainbow 21,” which lets blackjack players
lay side bets on fellow players’ hands. “The
Kansas City Star,” October 15, 1996;
Headline: Do you ever out-think yourself at
the blackjack table?
...stand, you’ll lose unless the dealer
breaks. And with a playable Ace showing,
the dealer only breaks 17 times out of
100! So by losing his discipline, this
player gave away seven extra chances to win
the hand, and the four that came out next
was one of those seven chances. “Chicago
Daily Herald,” June 29, 2001; and
Headline: Lottery Officials Back Off
Changing Lotto Game
...Currently, players must correctly pick
the numbers of all six balls drawn to win
the top prize. Under one of the proposed
changes, a seventh ball would be drawn to
give players an extra chance to win runner-
up prizes, when three, four or five numbers
Ser. No. 76/012889
5
are correctly picked. “The Houston
Chronicle,” September 22, 1999.
Finally, the Examining Attorney points to applicant’s
own identification of services from which it is clear that
applicant is providing a side bet or extra chance to win
money in a blackjack game.
The test for determining whether a mark is merely
descriptive is whether the term or phrase 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 is intended to be used. See In re Abcor
Development Corp., 588 F.2d 811, 200 USPQ 215 (CCPA 1978);
In re Eden Foods Inc. 24 USPQ2d 1757 (TTAB 1992); and In re
Bright-Crest, Ltd., 204 USPQ 591 (TTAB 1979). 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 term or phrase is being used or is intended to be
used on or in connection with those goods or services, and
the impact that it is likely to make on the average
purchaser of such goods or services. See In re
Consolidated Cigar Co., 35 USPQ2d 1290 (TTAB 1995); and In
Ser. No. 76/012889
6
re Pennzoil Products Co., 20 USPQ2d 1753 (TTAB 1991).
Consequently, “[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). Rather, the question is
whether someone who knows what the goods or services are
will understand the term or phrase to convey information
about them. See In re Home Builders Association of
Greenville, 18 USPQ2d 1313 (TTAB 1990).
The dictionary listings for these three words
establish their everyday commonly understood meanings in
the English language. And the dictionary meanings coupled
with the Nexis evidence show that the average consumer
views the term “extra chance” as descriptive of casino
games including blackjack, with optional wagers or side
bets. The fact that the phrase “extra chance” may also be
descriptive of other gambling activities does not detract
from the fact that it describes the gambling activity set
out in applicant’s identification of services.
When we consider the phrase EXTRA CHANCE BLACKJACK as
a whole, and in the context of applicant’s services
(“providing a side bet in the card game commonly known as
‘Blackjack’ or ‘21’ or ‘Twenty-One’”), the phrase
immediately informs consumers that applicant’s service
Ser. No. 76/012889
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consists of a side bet or extra chance to win money on a
hand of blackjack. That is, the purchasing public would
immediately understand the main characteristic/feature of
applicant’s service--providing a side bet on blackjack.
The combination of these words does not create an
incongruous or suggestive mark. Rather, applicant’s mark,
EXTRA CHANCE BLACKJACK, when used in connection with
applicant’s identified services, immediately describes,
without need of conjecture or speculation, the main
characteristic/feature of applicant’s services, i.e., that
an extra chance to win money during a hand of blackjack is
available through the use of this side bet. Nothing
requires the exercise of imagination or mental processing
or gathering of further information in order for purchasers
of and prospective customers for applicant’s services to
readily perceive the merely descriptive significance of the
phrase EXTRA CHANCE BLACKJACK as it pertains to applicant’s
services. See In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009
(Fed. Cir. 1987); In re Omaha National Corporation, 819
F.2d 1117, 2 USPQ2d 1859 (Fed. Cir. 1987); In re
Intelligent Instrumentation Inc., 40 USPQ2d 1792 (TTAB
1996); and In re Time Solutions, Inc., 33 USPQ2d 1156 (TTAB
1994).
Ser. No. 76/012889
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Inasmuch as the phrase unquestionably projects a
merely descriptive connotation, we believe that competitors
have a competitive need to use this phrase. See In re
Tekdyne Inc., 33 USPQ2d 1949, 1953 (TTAB 1994); and 2 J.
Thomas McCarthy, McCarthy on Trademarks and Unfair
Competition, §11:18 (4th ed. 2001).
Decision: The refusal to register on the ground that
the mark is merely descriptive under Section 2(e)(1) is
affirmed.