Amazing Mazes LLC

Trademark Trial and Appeal Board

Feb 25, 2014

No. 85122528 (T.T.A.B. Feb. 25, 2014)

Oral Hearing: January 28, 2014 Mailed: February 25, 2014

United States Patent and Trademark Office
Trademark Trial and Appeal Board
________
In re Amazing Mazes LLC
________
Serial No. 85122528
_______
Mary Margaret L. O’Donnell and Avery N. Goldstein of Blue Filament Law
PLLC for Amazing Mazes LLC.
Ramona Ortiga Palmer, Trademark Examining Attorney, Law Office 117
(Brett J. Golden, Managing Attorney).
_______
Before Bucher, Kuhlke and Lykos, Administrative Trademark Judges.
Opinion by Lykos, Administrative Trademark Judge:
On September 3, 2010, Amazing Mazes LLC (“applicant”) filed an applica-
tion to register the proposed mark 4D in standard character format for, as
amended, “entertainment services in the nature of an amusement park attrac-
tion, namely, a themed area featuring mirror labyrinths with rotating mirrors
therein” in International Class 41.1

1 Application Serial No. 85122528 was originally filed under Section 1(b) of the
Trademark Act. On October 3, 2012, applicant amended the filing basis to Section
1(a) and submitted an acceptable amendment to allege use.
This Opinion is Not a
Precedent of the TTAB
Serial No. 85122528

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The Trademark Examining Attorney has refused registration of the mark
under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the
ground that the mark is merely descriptive of applicant’s services, or alterna-
tively, that the mark is deceptively misdescriptive. For the reasons discussed
herein, the Board affirms both refusals.
I. Factual Background – Information Request
A person will enter the mirror maze at one location on foot and attempt to
exit the mirror maze at another location. The record includes portions of two
patent applications attributed to applicant.2 The first involves stationary, an-
gled mirrors having lighting in the floor providing an optical illusion that the
maze extends into infinity. The second patent uses rotating mirrors to en-
hance the disorienting effect of the labyrinth.
Because the exact nature of applicant’s services was unclear, during prose-
cution of this application, the examining attorney made a rather detailed in-
formation request. See Trademark Rule 2.61(b). See also TMEP § 1209.02
(Oct. 2013) (“The examining attorney may request that the applicant submit
additional explanation or materials to clarify the meaning of the mark or the
nature of the goods or services.).3 In relevant part, applicant responded that
“applicant’s services do not create a fourth dimension of physical existence

2 “Mirror Maze Including Floor Lighting,” Pat. Appl. No. 11/680376, filed February
28, 2007, and “Rotating mirrored stile for usage within a mirror labyrinth,” Pat.
Appl. No. 12/705,047, filed February 12, 2010.
3 The information request consisted of 29 questions. See March 3, 2011, Office Action.
Serial No. 85122528

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which is in fact physically impossible”; that “the visual adventure associated
with applicant’s services is created by using multiple reflections between mir-
rors and necessarily requires light to do so”; that “to the extent special effects
lighting is considered to include multiple reflections between mirrors, then
special effect lighting would be present”; that while applicant’s services do not
include motion simulators or films, “to the extent that motion is involved,
such motion would involve a rotating mirror”; and that said mirrors lack a
“tactile or odor generating functionality.” Applicant’s Responses to Request
Nos. 1, 3, 4, 6, 7, 9 and 10.
II. Is Applicant’s Proposed Mark Merely Descriptive?
First we consider the refusal that applicant’s mark is merely descriptive of
the identified services. Section 2(e)(1) of the Lanham Act precludes registra-
tion of a mark that, “when applied to the goods of the applicant, is merely de-
scriptive of them.”15 U.S.C. § 1052(e)(1) (2006). “A term is merely descriptive
if it immediately conveys knowledge of a quality, feature, function, or charac-
teristic of the goods or services with which it is used.” In re Chamber of Com-
merce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012),
quoting In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1831
(Fed. Cir. 2007). Evidence that a term is merely descriptive to the relevant
purchasing public “may be obtained from any competent source, such as dic-
tionaries, newspapers, or surveys.” In re Bayer, 82 USPQ2d at 1831, quoting
Serial No. 85122528

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In re Bed & Breakfast Registry, 791 F.2d 157, 229 USPQ 818, 819 (Fed. Cir.
1986).
Applicant contends that its applied-for mark 4D is suggestive, not merely
descriptive, because it is a “clever reference to an alternate reality or parallel
universe.” Applicant’s Brief, p. 4. Applicant is critical of the evidence submit-
ted by the examining attorney in support of the refusal, arguing that the dic-
tionary definition made of record supports applicant’s position that its mark is
suggestive. Applicant further submits that the evidence of third-party use of
the term “4D” is inapplicable because it pertains only to film or theater or
other “simulated” entertainment experiences (for example, an amusement
park ride) in which “moisture, odors, and moving seats are present and timed
to the visual presentation.” See also Applicant’s Brief, p. 1 and pp. 10-19. As
applicant maintains, its services are quite distinct, involving a self-guided
walk through a mirrored maze without any special effects such as water
sprays, odors, shaking or sounds because the presence thereof would be haz-
ardous in an enclosed labyrinth environment. Applicant also points to various
third-party registrations for entertainment services where the mark incorpo-
rates a number plus the letter “D” or term “dimension” without a disclaimer,
as further support for registration.
We are not persuaded by applicant’s arguments. Rather, we find that the
Office has satisfied its burden of demonstrating that applicant’s mark imme-
diately conveys to prospective purchasers a significant feature of the identi-
Serial No. 85122528

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fied services, namely that they include special effects that have come to be
known as “4D.” While we agree with applicant that the dictionary definition of
“four-dimensional” made of record by the examining attorney is of limited
probative value to support our determination of mere descriptiveness, much of
the remaining record evidence shows that consumers frequently encounter the
term “4D” in the amusement industry and understand the term to mean that
the attraction includes additional special effects. As seen in the discussion of
the evidence in the record, infra, we find such additional special effects would
include “rotating mirrors” (language expressly included in applicant’s identifi-
cation of services) or special lighting (a feature of the service expressly noted
by applicant). Applicant’s Responses to Request Nos. 4, 10, 12-15.
Generally, the term “4D” in contemporary parlance describes a character-
istic of a theater, film or amusement park attraction and refers to special ef-
fects such as moving seats, water mists, or scents. See the following repre-
sentative examples of use by third-parties in the industry:
• “Through the magic of Digital 3D projection and 4D Special FX, rides
are transported down to Bikini Bottom for the adventure of their lives.
Wind, bubbles, and scent are just a few of the 4D FX that create this
extraordinary experience.”
www.excalibur.com/attractions/spongebob4d.aspx (March 3, 2011, Of-
fice Action).

• “Follow the trajectory of the virtual objects as they travel towards their
targets through a dazzling 3D landscape. For an added "4D" element,
you can feel them as they whoosh by. Watch out for the water-filled bal-
loons - they pop and splash.”
disneyworld.disney.go.com/parks/hollywood-studios/attractions/toy-
story-mania (April 25, 2012, Office Action).

Serial No. 85122528

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• “The theater is equipped with 4D capabilities, which combine the high-
definition drama of a 3D film with special sensory effects that are built
into the theater seats and environment….Films are transformed into
15-minute experiences that bring on-screen images virtually to life with
special effects such as mist, wind, snow, bubbles, leg ticklers, scents,
enhanced lighting, and seat vibrations!”
http://www.aqua.org/explore/baltimore/exhibits-experiences/4d-theater
(April 25, 2012, Office Action).

The majority of evidence submitted by the examining attorney uses the term
“4D” within this context. For this reason, applicant argues that “4D” is de-
scriptive only for movie theaters or other simulated experiences such as
amusement park rides featuring films with movement, water effects (i.e.,
spray, mist) or odors, each synchronized to film. Applicant further asserts that
the record is devoid of evidence of use of the term in connection with labyrinth
maze amusement attractions. Applicant’s Brief, p. 5. While the examining at-
torney has submitted a considerable amount of evidence showing usage of the
term “4D” in connection with movie theaters and amusement park rides, it is
clear that the application of “4D” special effects extends beyond such venues.
Particularly probative is applicant’s own use of the term “4D” in advertising
its self-guided mirror mazes or “mirror labyrinths.” Applicant uses the term
“4D” in a descriptive fashion as stated below to refer to the moving or rotating
mirrors:
• “One of San Antonio's newest attractions, Ultimate Mirror Maze will
have you seeing double in an amusing 4D moving mirror maze experi-
ence.” http://www.livingsocial.com :

April 25, 2012, Office Action.
Serial No. 85122528

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In addition, applicant contends that “4D” is limited to sensory effects such
as water sprays, odors, physical shaking or buzzing noises. The evidence how-
ever shows that the term “4D” encompasses other types of special effects such
as special lighting or rotating mirrors. See excerpt above from the website Liv-
ing Social.com. See article obtained from the Daily Press (Newport News, Vir-
ginia) dated August 7, 2008, titled, “Artist to Empower Kids at Bay Days”
(“There’s also a theater that the foundation calls “four dimensional” because
it’s equipped with a fog machine, lights and simulated wind.”) and website ex-
cerpt obtained from www.inparknews.blogspot.com/2010/09/new-4d-theater-
at-lands-end-amusement.html (“ … the multi-sensory 4D experience offers
high-tech moving seats, air blasts, water sprays, aromas and even leg ticklers.
Added in-theatre effects include special effects lighting, wind, bubbles and low
smoke.” Applicant’s own use of its proposed mark 4D on its specimen dis-
played below also serves to emphasize its descriptive nature:
Serial No. 85122528

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With regard to applicant’s contention that prospective consumers would
perceive the proposed mark 4D as suggestive because it is invocative of an al-
ternate reality, differing spatial relations or altered perceptions, we disagree.
“[D]escriptiveness of a mark is not considered in the abstract.” Coach Services
Inc. v. Triumph Learning, LLC, 663 F.3d 1356, 101 USPQ2d 1713, 1728 (Fed.
Cir. 2012) (internal citation omitted). Instead, descriptiveness must be evalu-
ated “in relation to the particular goods [or services] for which registration is
sought, the context in which it is being used, and the possible significance that
the term would have to the average purchaser of the goods [or services] be-
cause of the manner of its use or intended use.” In re Chamber of Commerce,
102 USPQ2d at 1219, quoting In re Bayer, 82 USPQ2d at 1831. See, e.g., In re
Polo Int’l Inc., 51 USPQ2d 1061 (TTAB 1999) (finding DOC in DOC-
Serial No. 85122528

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CONTROL would be understood to refer to the “documents” managed by ap-
plicant’s software, not “doctor” as shown in dictionary definition). In other
words, the issue is whether someone who knows what the services are will
understand the mark to convey information about them. In re Tower Tech,
Inc., 64 USPQ2d 1314, 1316-1317 (TTAB 2002); In re Patent & Trademark
Serv. Inc., 49 USPQ2d 1537, 1539 (TTAB 1998). As the record shows, appli-
cant’s use of the term “4D” in relation to amusement attraction service is not
unique. As aptly put by the examining attorney, “[w]hen the applicant’s ser-
vices are considered in relation to the term ‘4D,’ consumers would not believe
that the only significance of the term is that of a ‘mathematical conundrum’ or
‘parallel universe’ waiting behind the next mirror” nor “would consumers be-
lieve ‘4D’ only refers to an alternate zone or dimension, experience in time or
space, or invitation to another world.” Examining Attorney Brief, unnumbered
page eight. Rather, the term “4D” would be perceived by consumers as identi-
fying or describing the special effects of rotating mirrors or lighting.
Applicant refers to third-party registrations for “D” or “dimension” marks
registered on the Principal Register as evidence that applicant’s mark is not
merely descriptive. supra at 4. The marks cited by applicant incorporating the
terms “fifth,” “sixth” or “seventh” dimension (or the equivalent thereof) are
distinct and therefore not relevant to our analysis. The remaining marks hav-
ing the terms “4D” or “Fourth Dimension” must be weighed against evidence
showing disclaimers of the term “4D” in relation to more similar services. See
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Serial No. 85122528

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We find that the Office has met its burden of proof that applicant’s pro-
posed mark 4D, when used in connection with the identified services, is mere-
ly descriptive.
III. Is the Proposed Mark Deceptively Misdescriptive?
For sake of completeness, we now consider the examining attorney’s alter-
nate ground of refusal. Section 2(e)(1) of the Trademark Act, 15 U.S.C.
§ 1052(e)(1), also prohibits registration of designations that are deceptively
misdescriptive of the goods or services to which they are applied. A mark is
considered deceptively misdescriptive if (i) the mark misdescribes a quality,
feature, function, or characteristic of the goods or services with which it is
used; and (ii) consumers would be likely to believe the misrepresentation. In
re Quady Winery, Inc., 221 USPQ 1213 (TTAB 1984).
As the starting point for our analysis, we note that for a term to misde-
scribe services, the term must be merely descriptive of a significant aspect of
the goods which the goods could plausibly possess but in fact do not. See In re
Phillips-Van Heusen Corp., 63 USPQ2d 1047, 1051 (TTAB 2002). As shown by
the evidence discussed above, the term “4D” refers to a type of special effect
prevalent in the amusement attraction industry. The identification of services
does not explicitly include or exclude the term “4D.” It does however expressly
include the feature of “rotating mirrors.” Applicant in response to the examin-
ing attorney’s information request has stated that other than lighting and ro-
tating mirrors, its mazes do not include other special effects or films. There-
Serial No. 85122528

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fore, for purposes of determining this alternate ground of refusal, we assume
for the sake of this discussion that the term “4D” is a term of art in the enter-
tainment field, as suggested by applicant, requiring special effects such as wa-
ter sprays, odors, shaking or sounds, but does not encompass rotating mirrors
or special effects lighting. Nonetheless, based upon the evidence discussed
above, consumers, upon encountering the term “4D” in applicant’s advertise-
ments and trade dress will expect amusement park attraction services having
tactile or odor-generating functionalities that are decidedly absent from appli-
cant’s mirror labyrinths. Accordingly, the alleged mark 4D misdescribes ap-
plicant’s services.
Turning now to the second prong for deceptively misdescriptive terms, ap-
plicant contends that because special water or movement effects in an en-
closed maze environment would create a liability issue, consumers would be
sensitive to this reality, and hence not be likely to believe the misrepresenta-
tion. However, the evidence of record discussed above demonstrates that con-
sumers of amusement park attractions understand the term “4D” as describ-
ing special effects more varied than simply water or movement, including but
not limited to odor, sound or wind. Inasmuch as designers of mirror mazes are
constantly attempting to enhance the experience and effect, applicant cannot
preclude the possibility of adding various types of forced air, sounds or smells.
Prospective consumers encountering applicant’s proposed mark are therefore
likely to believe that applicant’s services will include some combination of
Serial No. 85122528

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“4D” special effects typical of other “4D” amusement park attractions but ab-
sent from applicant’s maze. Accordingly, because both elements of the test for
a deceptively misdescriptive term have been satisfied, registration of the term
“4D” is barred by Section 2 (e)(1) of the statute under this alternate ground of
refusal.
Decision: The refusal to register the alleged mark 4D as merely descrip-
tive under Section 2(e)(1) is affirmed. In the alternative, the examining attor-
ney’s refusal alleging that the term is deceptively misdescriptive under Sec-
tion 2(e)(1) is affirmed.