Major League Baseball Properties, Inc.

Trademark Trial and Appeal BoardNov 8, 2012

No. 77876203 (T.T.A.B. Nov. 8, 2012)

THIS OPINION IS NOT A PRECEDENT OF THE TTAB Mailed: November 8, 2012 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Major League Baseball Properties, Inc. _____ Serial No. 77876203 _____ Mary L. Kevlin and Thomas Kjellberg of Cowan, Liebowitz & Latman, P.C. for Major League Baseball Properties, Inc. Christopher Buongiorno, Trademark Examining Attorney, Law Office 102 (Karen M. Strzyz, Managing Attorney). _____ Before Holtzman, Taylor and Kuczma, Administrative Trademark Judges. Opinion by Kuczma, Administrative Trademark Judge: Major League Baseball Properties, Inc. (“applicant”) filed an application under § 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), seeking registration of the mark: HONORARY BAT GIRL in standard character form for “conducting a contest relating to cancer awareness,” as amended, in International Class 41.1 1 Application Serial No. 77876203, filed on November 19, 2009. Serial No. 77876203 2 Registration of the mark was refused under § 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that the applied-for mark is merely descriptive of the identified services. When the refusal was made final, applicant appealed and requested reconsideration. After the request for reconsideration was denied, applicant filed a request for remand and suspension of appeal wherein it amended the description of services to add “relating to cancer awareness.” The amendment to the description of services was subsequently entered, the final refusal was maintained and the appeal was resumed.2 Applicant and the examining attorney submitted briefs and applicant filed a reply brief. A. Descriptiveness Applicant’s mark was refused registration on the ground that it is merely descriptive of applicant’s contest services. More particularly, the mark is considered to describe the contest prize of serving as an honorary bat girl at a baseball game.3 Applicant contends that the inherent ambiguity and incongruity of its mark in relation to its services of conducting a contest relating to cancer awareness, renders its mark, at most, suggestive of such services.4 A term is deemed to be merely descriptive of goods or services, within the meaning of Trademark Act § 2(e)(1), if it forthwith conveys an immediate idea of an ingredient, quality, characteristic, feature, function, purpose or use of the goods or 2 Applicant amended the description of services to add the language “relating to cancer awareness” in its July 8, 2011 Request for Remand and Suspension of Appeal. The amendment was subsequently accepted. See Examining Attorney’s Appeal Brief p. 2. 3 Examining Attorney’s Appeal Brief p. 3. 4 Applicant’s Appeal Brief p. 4 Serial No. 77876203 3 services. In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009 (Fed. Cir. 1987); and In re Abcor Development Corp., 588 F.2d 811, 200 USPQ 215, 217 (CCPA 1978). The determination of whether a mark is merely descriptive is not made in the abstract; it must be considered in relation to the identified services, the context in which it is being used, and the possible significance that the term would have to the average purchaser of the services because of the manner of its use or intended use. In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007) citing Abcor Development Corp., 200 USPQ at 217-218. In determining the descriptiveness of a term or mark comprising more than one element, it is permissible to consider the significance of each element separately in the course of evaluating the term or mark as a whole. See In re Hotels.com, L.P., 573 F.3d 1300, 1301, 91 USPQ2d 1532, 1535, 1537 (Fed. Cir. 2009) (holding HOTELS.COM generic for information and reservation services featuring temporary lodging noting that the Board did not commit error in considering “the word ‘hotels’ for genericness separate from the ‘.com’ suffix”); In re Oppedahl & Larson LLP, 373 F.3d 1171, 1174-75, 71 USPQ2d 1370, 1372 (Fed. Cir. 2004) (holding PATENTS.COM merely descriptive of computer software for managing and tracking the status of database records noting that “the PTO may [separately] consider the meaning of ‘patents’ and the meaning of ‘.com’ with respect to the goods identified in the application.”); and In re Save Venice N.Y., Inc., 259 F.3d 1346, 1352, 59 USPQ2d 1778, 1782 (Fed. Cir. 2001) (holding a mark primarily geographically deceptively misdescriptive for a variety of goods noting that “[i]t is Serial N not err element whole.”) 1 T GIRL, w were su H 1 2 H 1 2 T honor o without 5 See att 6 See att o. 7787620 oneous, ho within th . . 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P irls in my little girl. ll live at ho oung one. passages wing use men enga efinition a s. m HONOR females a ever, the applican : t for Recons st for Recon bitch). W quial Exp ublished b son’s class me. This use i from art of the p ge in with s well as ARY BAT nd males following t, recogniz ideration D sideration hat I need ressions b y McGraw . s consider icles in th hrase “gi other wom usage, the GIRL is over the a definition e that “b enied. Denied. ed in the y Richar Hill. ed offensiv e Lexis® rls night en, inclu word “gir not descrip ge of 18 an s of “bat g at girl” h last d A. e by US out” ding l” is tive d is irl,” as a Serial N D A te D -n A e T includin are pres “batgirl In use, ide connect that the and acco A term HO 10 See Ex 11 Applic girl.” Se April 29, 12 See at o. 7787620 efinition girl or wo am efinition oun Baseb girl or y quipment o he record g Florida umably yo s.”12 view of t ntifies a fe ion with a honoree d rdingly, w dditional NORARY hibit B to a ant and the e attachme 2011 Requ tachments t 3 of Bat Gi man empl of Bat Gi all oung wom f a team. also shows State, Clem ung wome he foregoin male child baseball oes not ne ill not nec evidence in BAT GIR pplicant’s A examining nts to appli est for Reco o April 29, rl:10 oyed to loo rl:11 an who t that fema son, LSU n, are recr g, the ter or adult w team. Th ed to posse essarily pe the recor L has been ugust 25, 2 attorney su cant’s Augu nsideration 2011 Reque 7 k after th akes care le college and Texa uited to a m HONOR ho receiv e inclusion ss the nec rform the d establis used by 010 Respon bmitted th st 25, 2010 Denied. st for Reco e equipme of the ba students a s A&M, th ssist the s ARY BAT es the hon of the w essary exp actual dut hes that t third parti se to Offic e same dict Response t nsideration nt (as bats ts and so t America e vast ma chools’ bas GIRL by orary title ord “hono erience or ies of a “ba he manne es and thu e Action. ionary defi o Office Act Denied. ) of a base metimes o n universi jority of w eball team definition, of “bat gir rary” conn qualificat t girl.” r in which s encount nition for “b ion and the ball ther ties, hich s as and l” in otes ions, the ered at Serial N by custo describe 3 It the opp team. A bat boy official r on the r related with tea introduc KFC Ba . The Ch contest 13 See at 14 See at o. 7787620 mers, is c d by the fo . Third-Pa is a comm ortunity, t s reflecte )” is a titl ecognition ecipient a activities m membe tion to the t Girl Co . . ukars in 14 tachment to tachment to 3 onsistent regoing di rty Conte on practi hrough con d by the e e used to as a “bat s a contes such as ta rs, as we fans and, ntest13 associati February February with the m ctionary d sts/Awards ce for orga tests or o xcerpts set identify a girl/boy” a t prize or king the f ll as recei gifts such on with H 25, 2010 Of 25, 2010 Of 8 eaning of efinitions. /Benefits nizations therwise, t forth belo person, u t a basebal award wh ield with ving ticke as team je ertz Car fice Action. fice Action. the term and corpo o be a “ba w, the ter sually chil l game. T ich also in the baseb ts to a ba rseys and Sales, w HONORA rate spons t girl/boy” m “honora dren, sele he title is cludes, in all team a seball gam memorabi ill hold H RY BAT G ors to pro for a base ry bat gir cted to rec often besto ter alia, te nd interac e, a pers lia: ertz Bat IRL vide ball l (or eive wed am- ting onal Boy Serial N Camde Snyder 15 See at 16 See at o. 7787620 n Riversh ’s Honora tachment to tachment to 3 arks Hon ry BatBo September September orary Ba y/BatGirl 28, 2010 F 28, 2010 F 9 tBoy/BatG 16 inal Office inal Office irl15 Action. Action. Serial N Orioles Iowa C 17 See at 18 See at o. 7787620 Honorar ubs18 tachment to tachment to 3 y Bat Boy September April 29, 2 /Girl Swe 28, 2010, F 011 Reques 10 epstakes inal Office t for Recon (undated Action. sideration D )17 enied. Serial N Chaps 19 See at o. 7787620 Honorary tachment to 3 Bat Kid1 April 29, 2 9 011 Reques 11 t for Reconsideration D enied. Serial N Marine Alfred’ 20 See at 21 See at o. 7787620 s20 s Auction tachment to tachment to 3 s, Inc.21 September September 28, 2010 F 28, 2010 F 12 inal Office inal Office Action. Action. Serial N The Bo O in some equipme retrievin of the eq H “bat girl an indiv given as particip 22 See at 23 See Le Final Ac whispers Request o. 7787620 ston Glob n occasion of the dut nt off the g bats an uipment.” ence, it is /boy” to id idual in c a contest ation in s tachment to dyard girl r tion); and M too interes for Reconsi 3 e22 , the hono ies of a ba field . . d supplyin 23 common p entify the onnection award acc ome of th August 9, epresents C acey’s Hon ting to igno deration De rary bat g t girl or bo . ,” “perfo g baseball ractice to recognition with a ba ompanied e actual d 2011 Reque onnecticut orary Bat K re The Repu nied). 13 irl/boy rec y such as rm[ing] si s to the um combine t , i.e., the seball gam by gifts an uties of a st for Reco fans at Fen id Sign Up blican (Spr eives the o “help[ing] mple duti pire,” or “ he word “ title of “ho e. This d/or privi bat girl/b nsideration way (attach Informatio ingfield) (a pportunity the regula es on the help[ing] b honorary” norary bat recognition leges, whic oy. Thus Denied. ed to Septe n Announc ttached to A to partici r bat boy field suc ring out s with the t girl,” give is freque h may inc , the publ mber 28, 2 ed and Crie ugust 9, 2 pate take h as ome erm n to ntly lude ic is 010 s & 011 Serial No. 77876203 14 familiar with, and accustomed to seeing, the term HONORARY BAT GIRL associated with contests in connection with baseball games and will understand this term to be a title bestowed upon a person as part of the contest prize. 3. Applicant’s Use of Term The manner in which applicant uses the term HONORARY BAT GIRL sheds further light on the descriptiveness of this term. Applicant uses HONORARY BAT GIRL as the name of its contest.24 The contest is open to adults of both sexes and is intended to promote cancer awareness. As prescribed by its official rules, “a contestant enters applicant’s HONORARY BAT GIRL contest by answering the question ‘How Do You Go to Bat Against Breast Cancer?’ and describe[s] his or her personal connection to breast cancer in a written essay. That connection could be a personal fight against the disease, or that of a family member, such as a son describing his experience with his mother’s battle with the disease.”25 Applicant contends that HONORARY BAT GIRL is at most suggestive, and not merely descriptive of its services, because “potential customers” would not immediately understand the nature of its services, i.e., conducting a contest relating to cancer awareness.26 Applicant’s argument is misplaced. Even if “customers” would not immediately understand the specific nature of applicant’s contest as relating to cancer awareness, this does not mean the term HONORARY BAT GIRL is suggestive. The term conveys an immediate idea of a contest prize or award 24 See applicant’s specimen and 2010 Honorary Bat Girl Contest Official Rules attached as Exhibit A to applicant’s August 25, 2010 Response to Office Action. 25 Applicant’s Appeal Brief p. 8. 26 Applicant’s Appeal Brief p. 4. Serial N which r services D relation modicum which a not incl argues t the incl men, ne E advertis purchas specime significa custome the top Breast C the page pink ba 27 Applic o. 7787620 enders it . ue to the to applica of imagi re offered ude servin hat its HO usion of th ither of wh vidence of ing mater ers to the n of use f nce that r or conte of its we ancer.” P . The bac seball cap ant’s Appea 3 descriptive asserted nt’s servic nation to to adult m g as an “ac NORARY e word “gi ich is enco the conte ial directed mark. Ab eaturing a the term stant. Th bpage spe ink cance kground co and holdin l Brief p. 4 in the co inherent es, applica divine from en and wo tual” bat BAT GIR rl” in its m mpassed b xt in whic to the go cor Develo portion o HONORA e title “Th cimen und r ribbons lor of the g a pink b . 15 ntext of a ambiguity nt further the mar men, are r girl during L mark is ark, its c y the term h a mark ods is prob pment Co f a page f RY BAT e Honorar erneath t flank t page is pin at. The tex pplicant’s and inco urges tha k itself th elated to c a basebal not descrip ontest is o “girls.” is used o ative of th rp., 200 U rom its w GIRL wou y Bat Girl he phrase he top rig k and feat t contains baseball-r ngruity of t it require e nature o ancer awa l game.27 tive becau pen to adu n labels, p e reaction SPQ at 21 ebsite dem ld have t Contest” “Going t ht and left ures a wo the follow elated con the mar s more th f the serv reness, an Applicant se contrar lt women ackages, o of prospec 8. Applica onstrates o the ave is located o Bat Aga hand sid man weari ing langu test k in an a ices, d do also y to and r in tive nt’s the rage near inst es of ng a age: Serial No. 77876203 16 This year, submit your story and you could win an opportunity to be an Honorary Bat Girl or Boy this Mother’s Day (Must be 18 or older to enter). . . One winner per Major League Baseball team will be selected as Honorary Bat Girl or Boy and will represent his or her favorite Major League Baseball team as an “honorary” bat girl or boy during the Mother’s Day Game. . . . The portion of applicant’s website for its 2011 HONORARY BAT GIRL CONTEST submitted by the examining attorney, features images of adult females (no males) identified as “Honorary Bat Girl” and contains similar language regarding the contest:28 Submit your story by April 14, 2011, 12:01 pm ET and you could win an opportunity to be an “Honorary Bat Girl” this Mother’s Day. (Must be 18 or older to enter). . . . One winner per Major League Baseball team will be selected to represent his or her favorite Major League Baseball team as an “Honorary Bat Girl” on Mother’s Day, May 8, 2011. . . . The manner in which applicant uses the term it now seeks to register is telling. Specifically, applicant uses the term “Honorary Bat Girl” as a noun and without any explanatory language. Such use necessarily assumes that visitors to its site will comprehend the meaning of the term “Honorary Bat Girl or Boy.” Indeed, applicant admits that this term has an “ordinary meaning.”29 Applicant's own use of the term in a descriptive manner is strong evidence that the term is descriptive. See, e.g., In re Gould Paper Corp., 834 F.2d 1017, 5 USPQ2d 1110, 1112 (Fed. Cir. 1987) (“[applicant's] own submissions provided the most damaging evidence that [the word SCREENWIPE is generic]”); and In re 28 See April 29, 2011 Request for Reconsideration Denied pp. 12-15. 29 See Applicant’s Appeal Brief p. 10. Serial No. 77876203 17 Educational Communications, Inc., 231 USPQ 787, 790 (TTAB 1986) (“applicant's own highly descriptive usages of the components of its asserted mark ... is strong evidence of its generic nature”). That applicant’s contest is open to men as well as women, and there is no evidence of any other contest, competition or call for participation with a “girl” designation – except for applicant’s HONORARY BAT GIRL contest – that is explicitly opened to women and men of legal age, does not alter the descriptive meaning of the term HONORARY BAT GIRL or transform it into a suggestive mark. While contestants entering applicant’s HONORARY BAT GIRL contest may be men or women, the title “Honorary Bat Girl” is bestowed primarily on female candidates identified by the contestants. Females are clearly the target of applicant’s contest as evidenced by the name of applicant’s HONORARY BAT GIRL contest, the pink color scheme, the fact that the award tickets are for a game played on Mother’s Day and the images of only female Honorary Bat Girls on applicant’s website.30 Applicant’s contest prize consisting of two tickets to attend a professional baseball game played on Mother’s Day, an opportunity for the winner to be recognized on the baseball field during the game and pink ribbon team merchandise to wear,31 is very similar in nature to the prizes awarded by third parties to 30 According to a Wikipedia article submitted by applicant: “The color pink is considered feminine in modern Western countries. . . . Buying, wearing, displaying, or sponsoring pink ribbons signals that the person or business cares about women. The pink ribbon is a marketing brand for businesses that allows them to promote themselves with women and identify themselves as being socially aware.” (emphasis added). See Exhibit B to March 29, 2011 Request for Reconsideration. 31 See PRIZE section of 2010 Honorary Bat Girl contest Official Rules attached as Exhibit A to applicant’s August 25, 2010 Response to Office Action. Serial No. 77876203 18 honorary bat girl (and boy) contest winners. Thus, HONORARY BAT GIRL would be understood to describe the prize awarded in applicant’s contest. Applicant’s argument that HONORARY BAT GIRL is not descriptive of the specific purpose of its contest, i.e., promoting cancer awareness, misses the point. A term need not immediately convey an idea of each and every specific feature of the applicant’s goods or services in order to be considered merely descriptive; it is enough that the term describes one significant attribute, function or property of the goods or services. In re H.U.D.D.L.E., 216 USPQ 358, 359 (TTAB 1982); and In re MBAssociates, 180 USPQ 338, 339 (TTAB 1973). In view of the common use of the term “honorary bat girl,” the meaning of the individual words in this term, and the manner in which applicant uses the term HONORARY BAT GIRL, it is evident that HONORARY BAT GIRL would be understood as describing the prize awarded in applicant’s baseball-related contest. Applicant argues on the one hand that use of the word “girl” in HONORARY BAT GIRL functions in a suggestive manner to convey a “feminine concept” yet on the other hand, argues that “girl” is an offensive term when used to refer to female adults.32 Acceptance of applicant’s argument finds applicant in the predicament of having used the offensive word “girl” to evoke a concept of femininity in a contest directed to adult females and males. Rather than suggesting the more complex and unlikely feminine concept espoused by applicant, the plain meaning of the words in the term HONORARY BAT GIRL directly describes the prize to be awarded in connection with applicant’s contest. 32 See applicant’s Appeal Brief at pp. 6-7. Serial No. 77876203 19 In an effort to overcome the descriptive meaning of HONORARY BAT GIRL, applicant contends that this term contains a double entendre; that is, HONORARY BAT GIRL has a double connotation one of which is not merely descriptive of its services.33 In urging this position, applicant undertakes a complicated argument that relies on the marketing slogan GOING TO BAT AGAINST BREAST CANCER that applicant uses in connection with its HONORARY BAT GIRL contest.34 According to applicant, in the context of its services, “Go[ing] to Bat” relates not only to the sport of baseball, it also suggests defending or giving support to the fight against breast cancer. The word BAT in HONORARY BAT GIRL is an extension of the “Go to Bat” idiom, suggesting a person who “goes to bat” – supports the cause – against breast cancer.35 A mark is deemed to be a double entendre only when both meanings are readily apparent from the mark itself. If the alleged second meaning of the mark is apparent to purchasers only after they view the mark in the context of applicant’s advertising materials, trade dress or other matter separate from the mark itself, then the mark is not a double entendre. See In re The Place Inc., 76 USPQ2d 1467, 1471 (TTAB 2005) (“A mark is not a double entendre if the second meaning is 33 Applicant’s Appeal Brief pp. 7-10. 34 According to applicant, GOING TO BAT AGAINST BREAST CANCER is a registered trademark of the Susan G. Komen Breast Cancer Foundation, Inc. See Applicant’s Appeal Brief pp. 8-9. 35 See Applicant’s Appeal Brief pp. 9-10. Serial No. 77876203 20 grasped by purchasers only when the mark is used with ‘other indicia,’ even if that other indicia is itself not merely descriptive.”).36 To explain the alleged double entendre of HONORARY BAT GIRL, applicant points to the marketing slogan GOING TO BAT AGAINST BREAST CANCER used together with HONORARY BAT GIRL on its website. Only when HONORARY BAT GIRL is used in conjunction with GOING TO BAT AGAINST CANCER can the second meaning of the applied-for term be appreciated. Under these circumstances, i.e., where the double meaning of a term can only be appreciated when it is used in a certain context, the term does not constitute a double entendre and retains its descriptive meaning. In re Wells Fargo & Company, 231 USPQ 95, 100-01 (TTAB 1986) (applicant argued EXPRESSERVICE was not merely descriptive of its banking services because of a double entendre involving the Old West; Board found consumers associate “Express Service” with Old West imagery only when the term is used in association with applicant’s name or other allied marks (e.g., the stagecoach design)). Even if there were some minor double entendre engendered by the term HONORARY BAT GIRL, the term is unregistrable because the primary significance of the term is descriptive. See In re Volvo Cars of North America Inc., 46 USPQ2d 1455, 1460 (TTAB 1998). 36 The cases cited at page 2 of applicant’s Reply Brief do not support its argument that the Board may take the content of applicant’s specimen into consideration in determining whether the mark is a double entendre. Rather, such cases provide that the context in which a mark is used such as in specimens, may be probative of the meaning of a mark and the reaction of prospective purchasers to the mark. See In re Hershey, 6 USPQ2d 1470, 1472 (TTAB 1988) and Abcor Development Corp., 200 USPQ at 218. Serial No. 77876203 21 Based on the evidence presented, the term HONORARY BAT GIRL will be perceived by consumers as the descriptive term “honorary bat girl” rather than as suggesting “a person who ‘goes to bat’—supports the cause—against breast cancer.” Thus, applicant’s argument that it is appropriate to look to its GOING TO BAT AGAINST BREAST CANCER marketing slogan to find that its HONORARY BAT GIRL term is a double entendre, must be rejected. In re Carlson, 91 USPQ2d 1198, 1203 (TTAB 2009). Applicant also argues that HONORARY BAT GIRL is inherently incongruous and as such the term is not merely descriptive of its services. Specifically, applicant argues that “the juxtaposition of the term HONORARY (‘having or conferring distinction,’ according to Merriam Webster’s Collegiate Dictionary, 10th ed.) with BAT GIRL—defined in the record as a ‘girl or young woman who takes care of the bats and sometimes the equipment of a team’—results in an oxymoron, inviting adult women and men to compete for the ‘honor’ of one of the humbler job titles in baseball.”37 We agree with applicant that incongruity is a strong indication that a mark is suggestive rather than merely descriptive.38 However, applicant’s HONORARY BAT GIRL mark, unlike the marks in the cases cited by applicant which require some degree of imagination to grasp their meaning, is a commonly used and understood slogan that evokes an immediate impression. 37 Applicant’s Appeal Brief p. 12. While this definition was included in Applicant’s Appeal Brief and is not in the record, the Examining Attorney did not object to the definition. In any event, the Board may take judicial notice of dictionary definitions. The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983). 38 Applicant’s Appeal Brief p. 12. Serial No. 77876203 22 B. Conclusion Descriptiveness of a mark, when applied to the goods or services involved, is to be determined from the standpoint of the average prospective purchaser. Abcor Development Corp., 200 USPQ at 218. Based on the record before us, we find that consumers, including contestants, of applicant’s contest services would understand HONORARY BAT GIRL to be a prize awarded in connection with applicant’s contest. In view of the foregoing, applicant’s applied-for mark HONORARY BAT GIRL is merely descriptive when used in connection with contests awarding prizes in a baseball setting. While any doubt as to the registrability of a mark is to be resolved in applicant’s favor, here, we have no such doubt. The evidence demonstrates that consumers are accustomed to contests that award winners with the opportunity to be recognized as “honorary bat girls/boys” and would understand the term HONORARY BAT GIRL to refer to the contest prize awarded by applicant. Decision: The refusal to register the applied-for term HONORARY BAT GIRL under § 2(e)(1) is affirmed.