UPDATE: “College Football Playoff” Receives Initial Refusal from USPTO

Looks like I won’t have to eat my last Office Action.  The USPTO has issued a refusal to register “COLLEGE FOOTBALL PLAYOFF” as a trademark for “Entertainment services in the nature of television and radio sports programs featuring college football games, exhibitions and tournaments; entertainment services, namely, organizing and staging college football games, exhibitions and tournaments; and providing entertainment, information, news and programming, polls, scores, standings, statistics, and history and background, all in the field of the sport of football, via the internet.”  The Office Action was issued in July, but I only recently re-checked the docket.

The main basis for refusal was that the mark merely describes the services:

The applicant applied to register the mark ‘COLLEGE FOOTBALL PLAYOFF’ for “entertainment services in the nature of television and radio sports programs featuring college football games, exhibitions and tournaments; entertainment services, namely, organizing and staging college football games, exhibitions and tournaments; and providing entertainment, information, news and programming, polls, scores, standings, statistics, and history and background, all in the field of the sport of football, via the internet.”

Applicant’s mark is merely the combination of the three descriptive words ‘COLLEGE’, FOOTBALL’ and ‘PLAYOFF.’  A mark that merely combines descriptive words is not registrable if the individual components retain their descriptive meaning in relation to the goods and/or services and the combination results in a composite mark that is itself descriptive.  TMEP §1209.03(d); see, e.g., In re King Koil Licensing Co. Inc., 79 USPQ2d 1048 (TTAB 2006) (holding THE BREATHABLE MATTRESS merely descriptive of “beds, mattresses, box springs and pillows”); In re Associated Theatre Clubs Co., 9 USPQ2d 1660, 1662 (TTAB 1988) (holding GROUP SALES BOX OFFICE merely descriptive of theater ticket sales services).  Such a mark is registrable only if the composite creates a unitary mark with a unique, incongruous, or otherwise nondescriptive meaning in relation to the goods and/or services.  See, e.g., In re Colonial Stores, Inc., 394 F.2d 549, 551, 157 USPQ 382, 384 (C.C.P.A. 1968).

In this case, both the individual components and the composite result are descriptive of applicant’s goods and/or services and do not create a unique, incongruous or nondescriptive meaning in relation to the goods and/or services.  Specifically, the wording ‘COLLEGE’ is defined as “an undergraduate division or school of a university offering courses and granting degrees in a particular field”, ‘FOOTBALL’ means “a game played by two teams of 11 players each on a rectangular, 100-yard-long field with goal lines and goal posts at either end, the object being to gain possession of the ball and advance it in running or passing plays across the opponent’s goal line or kick it through the air between the opponent’s goal posts” and ‘PLAYOFF’ means “a  series of games played to determine a championship.”  The combination of these three descriptive terms merely describe a series of college football games to determine a championship.  Applicant is providing entertainment services that will feature college football games that are played to determine a national championship.  The examining attorney has enclosed multiple news articles showing the term ‘COLLEGE FOOTBALL PLAYOFF’ used to describe games that will be played to determine the national champion of college football.  These articles use the term descriptively for a series of games to determine the national championship in college football.  Hence applicant’s mark is refused registration under Trademark Act Section 2(e)(1).

Not only was the mark deemed merely descriptive for the services, but the Examining Attorney also found that portions of the services were generic as to the mark:

In addition to being merely descriptive, the applied-for mark appears to be generic in connection with the following services “entertainment services, namely, organizing and staging college football games, exhibitions and tournaments” and, therefore, incapable of functioning as a source-identifier for applicant’s services.

Read the full Office Action HERE.  The applicant (BCS Properties) has until January 16, 2014 to respond and try to argue against the refusal.  No doubt it will be a Hail Mary…

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