George and Company LLC

Trademark Trial and Appeal Board

Sep 21, 2012

No. 77981611 (T.T.A.B. Sep. 21, 2012)

Mailed: September 21, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re George and Company LLC.
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Serial No. 77981611
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Jennifer L. Whitelaw of Whitelaw Legal Group for George and
Company LLC.

Michael Webster, Trademark Examining Attorney, Law Office
102 (Karen M. Strzyz, Managing Attorney).
_______

Before Bucher, Zervas and Ritchie, Administrative Trademark
Judges.

Opinion by Zervas, Administrative Trademark Judge:
George and Company LLC has appealed from the final
refusal of the examining attorney to register the mark

(GEORGE & CO. GAMES SINCE 1919 and design) for “video
games, namely, arcade-type electronic video games” in
International Class 28 on the Principal Register.
Applicant claims first use and first use in commerce on
THIS OPINION IS
NOT A PRECEDENT OF
THE T.T.A.B.
Serial No. 77981611
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October 1, 2010 and disclaimed the terms “CO.,” “GAMES,”
and “SINCE 1919.”
The examining attorney issued a final Office action in
which he found the substitute specimens filed on May 16,
2010 with applicant’s request for reconsideration
unacceptable under Trademark Act §§ 1 and 45, 15 U.S.C.
§§ 1051 and 1127. The substitute specimen consists of
product packaging for the goods, and the front and back of
the packaging are depicted below:1

1 Applicant also submitted this product packaging as its original
specimen.
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Applicant’s mark appears in the lower left-hand panel on
the back of the packaging.
In addition, applicant submitted as substitute
specimens two “splash screens from [the] Apple App Store”
and “a game program splash screen at download.” Request
for reconsideration at 2.
Section 1 of The Trademark Act requires that an
applicant submit “specimens or facsimiles of the mark as
used in commerce.” 15 U.S.C. § 1051. Trademark Act
Section 45 provides further that a mark is “in use in
commerce … on goods when — (A) it is placed in any manner
on the goods or their containers or the displays associated
therewith or on the tags or labels affixed thereto ….” 15
U.S.C. § 1127. The Trademark Rules likewise specify, in
pertinent part, that, “A trademark specimen is a label, tag
or container for the goods, or a display associated with
the goods.” 37 C.F.R. § 2.56(b)(1). Thus, a recitation of
services is unacceptable if it is inconsistent with the
services indicated by the specimens, or if the ordinary
meaning of the identification language is at variance with
the services evidenced by the specimens or any other part
of the record. See TMEP § 1402.05.
For the reasons stated below, none of the specimens
show use of the mark in commerce on the goods identified in
Serial No. 77981611
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the application, namely, an arcade-type electronic video
game. Accordingly, the refusal is affirmed.
We first consider whether the packaging material is
for, and applicant’s game contained therein comprises, an
electronic video game.
The definitions in the record of “video game” are:
● “any of various games that can be played by
using an electronic control to move points of
light or graphical symbols on the screen of a
visual display unit.” (The American Heritage
Dictionary of the English Language (4th ed. 2000),
accessed at thefreedictionary.com);

● “A style of game existing as and controlled by
software, usually run by a video game console or
a computer, and played on a video terminal or
television screen. Controlled by a paddle,
joystick, mouse, cursor keys or a combination of
any of these input devices.” (allwords.com); and

● “electronic, interactive games known for their
vibrant colors, sound effects, and complex
graphics.” (Encyclopedia of Children’s Health,
accessed at healthofchildren.com).

The game is described on the front of the packaging as
“Electronic Hand Held Game.” The back of the packing
states “players play against computer opponents,” but does
not explain how this is possible in light of the
instructions, which state:
Press and hold down the button on the top and
Shake It, Shake It, Shake It! You’ll hear the
dice actually tumbling. The game will show on
screen how the dice fall “Left, Center or Right”
Serial No. 77981611
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and how many “chips” you have left. Be the last
player with “chips” to win!

The packaging contains a device with a screen that appears
to depict the faces of three “dice” containing an “L” for
“left,” a “C” for “center” and an “R” for “right.” After
the device has been shaken a suitable period of time,
depending on the how the “dice” fall, the chips are
exchanged among players. As seen on the front of the
package (“NOW Left Center Right Dice Game Goes
Electronic”), this is simply an electronic version of an
age-old table game now having electronic dice as opposed to
actual dice.
Applicant’s device contained in its packaging does not
fit within any of the record definitions of “video game.”
The device is not played using an “electronic control” to
move points of light or graphical symbols on the screen of
a visual display unit, it is not played on a video
terminal, and it stretches the imagination to consider the
game “interactive” just because the player shakes the hand-
held device, and must do so again once the “dice” appear on
the screen to continue the game. Applicant disputes this,
saying at p. 5 of its brief that “Applicant’s video game,
with video screen, is interactive and is manipulated by the
user.” This does not seem plausible on applicant’s game,
Serial No. 77981611
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giving ordinary meaning to the terms “video screen” and
“interactive.”
Even if applicant’s game is considered a video game,
it is not an arcade-type video game. The evidence
introduced by the examining attorney indicates that larger
stand-alone, coin-operated games are known as arcade games.
(Arcade is defined as including “an establishment, public
area, etc., containing games of a mechanical and electronic
type, as pinball and video games, that can be played by a
customer for a fee.” Random House Dictionary (2011),
accessed at dictionary.reference.com, submitted with
applicant’s May 16, 2011 filing.)
Applicant’s evidence indicates that certain hand-held
games have been identified as “arcade” or “arcade-style”
games.

Serial No. 77981611
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We are not persuaded by this evidence for three
reasons. First, the games depicted in applicant’s evidence
are not of the same nature as “Left Center Right.” The
games appear to require the use of a joy stick or some type
of controls to maneuver through the game (consistent with
the definition of “video game” in the record), which
applicant’s game does not have. Second, those games
identified as being “arcade” games in applicant’s evidence
physically resemble games found in a game arcade, and none
of the evidence in the record persuades us that applicant’s
game physically resembles such arcade games (and hence an
“arcade-type” game). In this regard, we note particularly
the game hardware the examining attorney introduced into
the record from sources such as gamerroomchamp.com,
mpamusement.com, bmigaming.com and moneymachines.com, which
are identified as arcade games. Third, the third-party
handheld games in applicant’s evidence physically resemble
those arcade games or are adaptations of those games played
in arcades. See, for example, the bmigaming.com website
which references Pac-Man games.
Serial No. 77981611
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In addition, the examining attorney provided an entry
for “arcade genre” found within the wikipedia.com entry for
“arcade game,” and applicant’s game does not fit in within
the description of “arcade genre.” The entry for “arcade
genre” provides:
Arcade games often have very short levels, simple
and intuitive control schemes, and rapidly
increasing difficulty. This is due to the
environment of the Arcade, where the player is
essentially renting the game for as long as their
in-game avatar can stay alive (or until they run
out of tokens.)

The “control schemes” and rapid increase in difficulty are
absent from applicant’s game. See also, the definition in
the record of “arcade game” taken from Webopedia, an online
dictionary related to computer and Internet technology,
stating, “A type of game genre that is a fast-paced action
game (for PC or console), requiring hand-eye coordination
skill to play.” Applicant’s game is not for a PC or
console and it does not appear that hand-eye coordination
is necessary for the game.
We now turn to the remaining substitute specimens
submitted by applicant, namely, “splash screens from Apple
App Store” and “a game program splash screen at download.”
These are not appropriate as specimens for International
Class 28 goods pertaining to toys and sporting goods, see
TMEP § 1402.02(a), but are more appropriate for
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International Class 9 goods that are downloadable mobile
applications. See TMEP § 904.03(e)(“computer program [and]
video … industries have adopted the practice of applying
trademarks that are visible only when the goods, that is,
programs … are displayed on a screen.”).
Finally, applicant states in its brief that “[t]he
Examining attorney has still to this date failed to submit
any evidence showing, or even tending to show, why
Applicant’s game could not be played in an arcade.” Brief
at 7. The issue is not whether applicant’s game can be
played in an arcade; the issue is whether applicant’s game
exhibited in its substitute specimens is within the
International Class 28 identification of goods which it
chose, namely, an arcade-type electronic video game.
Decision: The refusal to register under Sections
1 and 45 of the Trademark Act because the specimens are
insufficient is affirmed.