Interactive Concepts Unlimited, Inc.

Trademark Trial and Appeal Board

Jun 29, 1999

No. 74563438 (T.T.A.B. Jun. 29, 1999)

Paper No. 10
JQ
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE TTAB 6/29/99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Interactive Concepts Unlimited, Inc.
________
Serial Nos. 74/563,438 and 74/563,439
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Joshua D. Thomas, Andrew P. Bridges and Diane E. Turriff of
Wilson Sonsini Goodrich & Rosati for applicant.
David C. Reihner, Trademark Examining Attorney, Law Office
107 (Thomas Lamone, Managing Attorney).
_______
Before Cissel, Quinn and Bucher, Administrative Trademark
Judges.
Opinion by Quinn, Administrative Trademark Judge:
Applications have been filed by Interactive Concepts
Unlimited, Inc. to register the mark REALTIME SPORTS for
“compact discs featuring sports information, and
accompanying computer software and user documentation
manuals sold as a unit” (in International Class 9) and
“computerized information services in the fields of
Ser No. 74/563,438 and 74/563,439
2
entertainment, sports, education, and related news” (in
International Class 41). 1
The Trademark Examining Attorney has refused
registration in each application under Section 2(e)(1) of
the Act on the ground that applicant’s mark, if used in
connection with applicant’s goods and/or services, would be
merely descriptive thereof.
When the refusals were made final, applicant appealed.
Applicant and the Examining Attorney have filed briefs.
Because of the close similarity of the issues involved in
these two appeals, the Board shall decide these cases in
one opinion.
Applicant contends that its goods and services provide
users the ability “to obtain sports-related information by
electronic means on a timely basis” and that the term “real
time” in applicant’s mark “is meant to give the impression
of timely availability of sports-related information.”
(July 25, 1995 response, pp.6-8) According to applicant,
the mark is just suggestive. In support of its arguments,
applicant submitted examples of third-party registrations

1 Application Serial Nos. 74/563,439 and 74/563,438,
respectively, each alleging a bona fide intention to use the mark
in commerce.
Ser No. 74/563,438 and 74/563,439
3
of marks which include the term “real time.” 2
The Examining Attorney maintains that the mark merely
describes a significant characteristic of applicant’s goods
and services, namely that they provide users with access to
sports information in real time. In support of the
refusal, the Examining Attorney furnished a dictionary
definition of the term “real time” and excerpts retrieved
from the NEXIS data base.
It is well settled that a term is considered to be
merely descriptive of goods and/or services, within the
meaning of Section 2(e)(1) of the Trademark Act, if it
immediately describes an ingredient, quality,
characteristic or feature thereof or if it directly conveys
information regarding the nature, function, purpose or use
of the goods and/or services. In re Abcor Development
Corp., 588 F.2d 811, 200 USPQ 215, 217-18 (CCPA 1978). It
is not necessary that a term describe all of the properties
or functions of the goods and/or services in order for it
to be considered to be merely descriptive thereof; rather,

2 Mere listings of third-party registrations generally are not
sufficient to make the registrations of record; copies of the
registrations themselves are required for that purpose. In re
Classic Beverage Inc., 6 USPQ2d 1383 (TTAB 1988). Further,
evidence accompanying an appeal brief is untimely submitted.
Trademark Rule 2.142. Despite these deficiencies, the Examining
Attorney, in his appeal brief, considered the cited registrations
as if properly of record. Thus, we have considered them in
reaching our decision.
Ser No. 74/563,438 and 74/563,439
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it is sufficient if the term describes a significant
attribute or feature about them. Moreover, whether a term
is merely descriptive is determined not in the abstract but
in relation to the goods and/or services for which
registration is sought. In re Bright-Crest, Ltd., 204 USPQ
591, 593 (TTAB 1979).
The term “real time” means, in relevant part, “the
actual time during which a process takes place or an event
occurs; at once; instantaneously; of or pertaining to
applications in which the computer must respond as rapidly
as required by the user or necessitated by the process
being controlled." Random House Compact Unabridged
Dictionary (2d ed. 1996).
The NEXIS excerpts include the following:
...units of its software product, which
delivers via the Internet real-time
news, sports scores and weather.
Media Daily, October 8, 1996
...plus interactive bulletin boards and
a real-time Sports Ticker which will
report up-to-the-minute scores of games
in progress.
The Atlanta Journal and Constitution,
July 13, 1997
JFAX also complements Smart Rules, a
CompuServe service that provides E-mail
via a pager and real-time stock,
weather and sports updates.
CommunicationsWeek, July 7, 1997
Ser No. 74/563,438 and 74/563,439
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Hundreds of Web sites provide real-time
sports scores for all major events.
Los Angeles Times, June 16, 1997
...news software products from Marimba,
PointCast, Starwave and others are now
beginning to deliver real-time,
personalized news, sports and financial
information directly to the computer
screens of our instant gratification
society.
American Journalism Review, June 1997
The company delivers real-time stock
quotes, financial and sports news and
gaming information to more than 37,000
subscribers via wireless FM, cable and
satellite transmission...
Telephone IP News, June 1997
DBC provides real-time stock quotes,
financial, sports, news and gaming
information to 10 partners...
Electronic Information Report, August
18, 1997
...they reported sports statistics in
real-time to SportsTrax and AOL. Time
elapsed in this process? Sometimes
only a few seconds.
NetGuide, April 1, 1997
The NEXIS evidence shows that information, including
sports information (e.g., scores of games), is transmitted,
through the use of computer software and electronic
networks, as events occur. We find that the mark, when
applied to applicant’s goods and/or services, immediately
describes a feature of them, namely that they are used to
obtain real-time (i.e., instantaneous) sports information.
Ser No. 74/563,438 and 74/563,439
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Accordingly, because the term REALTIME SPORTS conveys
forthwith a significant feature of applicant’s goods, such
term is merely descriptive thereof within the meaning of
the statute. See: In re Intelligent Instrumentation Inc.,
40 USPQ2d 1792 (TTAB 1996)[VISUAL DESIGNER is descriptive
of computer programs for controlling the acquisition of
data from measurement devices for the purpose of analysis,
display, testing and automatic control; the term describes
a feature of the goods, namely that they permit programming
applications to be visually designed].
With respect to the absence of any third-party uses of
the term “real-time sports,” the fact that applicant may be
the first and/or only user of the term is not determinative
where the term sought to be registered has a merely
descriptive connotation. In re Eden Foods Inc., 24 USPQ2d
1757, 1761 (TTAB 1992). Further, the third-party
registrations are of little help in determining the
registrability of the mark at issue in this case. As often
noted by the Board, each case must be decided on its own
set of facts, and we are not privy to the facts involved
with these registrations. While uniform treatment under
the Trademark Act is highly desirable, our task here is to
determine, based upon the record before us, whether
applicant’s mark is registrable.
Ser No. 74/563,438 and 74/563,439
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Decision: The refusal to register in each application
is affirmed.
R. F. Cissel
T. J. Quinn
D. E. Bucher
Administrative Trademark
Judges, Trademark Trial
and Appeal Board
Ser No. 74/563,438 and 74/563,439
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