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In re North Carolina Lottery, 866 F.3d 1363, 123 U.S.P.Q.2d 1707

Facts

The North Carolina Lottery (N.C. Lottery), a state agency, sought to register the mark 'FIRST TUESDAY' for its scratch-off lottery games introduced on the first Tuesday of each month. The U.S. Patent and Trademark Office's Trademark Trial and Appeal Board (TTAB) denied the registration, determining that the mark was merely descriptive. N.C. Lottery argued that the mark was suggestive and not descriptive, claiming it had continuously used the mark since July 2013 in various promotional materials.

N.C. Lottery asserts that it has continuously used the mark FIRST TUESDAY since July 2013 in print materials, on its Website, and on point-of-sale displays for related advertising.

Issue

Whether the mark 'FIRST TUESDAY' is merely descriptive and thus ineligible for trademark registration.

Whether the mark 'FIRST TUESDAY' is merely descriptive and thus ineligible for trademark registration.

Rule

A mark is considered merely descriptive if it immediately conveys information about a feature, quality, or characteristic of the goods or services for which registration is sought. Marks that are merely descriptive cannot be registered unless they acquire secondary meaning under the Lanham Act. The public's understanding of a mark can be evidenced by any competent source, including promotional materials.

A mark is merely descriptive if it immediately conveys information concerning a feature, quality, or characteristic of the goods or services for which registration is sought.

Analysis

The TTAB's decision was based on the understanding that the mark 'FIRST TUESDAY' directly describes when new scratch-off lottery games are offered. The court found that the explanatory text in promotional materials supported the TTAB's conclusion that consumers would immediately understand the mark's meaning without requiring any mental leap. The evidence indicated that the mark was less an identifier of source and more a description of a characteristic of the lottery games.

Substantial evidence supported finding of Patent and Trademark Office's (PTO) Trademark Trial and Appeal Board (TTAB) that state agency's FIRST TUESDAY, for scratch-off lottery to be held on first Tuesday of every month, was merely descriptive and thus could not be registered; the mark constituted a description of a feature or characteristic of the lottery, and a consumer would immediately understand its intended meaning.

Conclusion

The court affirmed the TTAB's decision, concluding that the mark 'FIRST TUESDAY' was merely descriptive and could not be registered.

For the foregoing reasons, we affirm the TTAB's decision refusing to register the mark FIRST TUESDAY.

Who won?

The United States Patent and Trademark Office prevailed in this case. The court upheld the TTAB's determination that the mark 'FIRST TUESDAY' was merely descriptive, emphasizing that the mark directly conveyed information about the timing of the lottery games. The court noted that substantial evidence supported the TTAB's findings, and the explanatory text in promotional materials reinforced the conclusion that consumers would readily understand the mark's meaning.

The PTO was entitled to consider explanatory text of specimens, including the promotional materials, stating that state agency's new scratch-off lottery games were offered on the first Tuesday of every month, in determining whether state agency's FIRST TUESDAY mark was merely descriptive and thus could not be registered.

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