Casino Data Systems

Trademark Trial and Appeal Board

Sep 22, 1998

No. 74621412 (T.T.A.B. Sep. 22, 1998)

Paper No. 14
SIMMS/md
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE
TTAB SEPT 22, 98
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Casino Data Systems
________
Serial No. 74/621,412
_______
Bernhard Kreten for Casino Data Systems.
Frances G. Smith, Trademark Examining Attorney, Law Office
103 (Michael Szoke, Managing Attorney)
_______
Before Simms, Hanak and Walters, Administrative Trademark
Judges.
Opinion by Simms, Administrative Trademark Judge:
Casino Data Systems (applicant), a Nevada corporation,
has appealed from the final refusal of the Trademark
Examining Attorney to register the mark DATAPORT for
computer hardware for use in a gaming environment, namely,
a microcontroller for monitoring a bank of slot machines in
Ser No. 74/621,412
2
a casino.1 The Examining Attorney has refused registration
under Section 2(d) of the Act, 15 USPQ §1052(d), and under
Section 2(e)(1) of the Act, 15 USC §1052(e)(1). Applicant
and the Examining Attorney have submitted briefs but no
oral hearing was requested.
According to brochures which applicant has made of
record concerning its high-technology casino equipment, the
mark DATAPORT is used in connection with applicant’s “unit
bank controllers.”
These devices are microcontroller units
designed to collect, validate, and
store data from the individual slot
machines. DataPortTM Unit bank
controllers communicate directly with
both the SentinelTM II units and the
Polling computer.
(DFK'DWD3RUWTM Unit can communicate
with up to 31 SentinelTM II units.
0HPRU\LQWKH'DWD3RUWTM Unit bank
controllers is capacitor backed up for
at least one week. Also, all of the
DataPortTM Unit data is stored on the
Polling computer and on the File
Server.
The Mere Descriptiveness Refusal
The Examining Attorney argues that applicant’s mark is
merely descriptive because it immediately describes a
function, purpose or use of applicant’s goods:

1 Application Serial No. 74/621,412, filed January 17, 1995,
Ser No. 74/621,412
3
A key element of every microcontroller
is the input/output ports which it
contains for transporting data,
commonly known as data ports… The
purpose of the applicant’s
microcontroller is to transport data
from point A to point B, i.e., from a
bank of slot machines in a casino to
“Sentinel II units” and to the “Polling
computer” at remote locations. This
function of the goods is described by
the mark. The mark immediately conveys
the information that the applicant’s
microcontrollers transport data via
data ports…
The applicant’s system is mapped in the
Oasis Configuration chart that
accompanied that specimens submitted in
this case… Looking at the chart, the
nature of the data port units as mere
conduits is shown… Data flows from the
slot machines through the data ports to
the network controllers. The means by
which this information flows is RS-485
lines, and the printed circuit board
that controls this flow of information
is identified by the applicant as a
Sentinel or Sentinel II… The data ports
simply collect, validate, and pass the
data along, storing the data as a
temporary back-up for one week. Thus,
the wording “dataport” merely describes
the function, purpose, or use of the
microcontroller unit and does not
function as a trademark to identify
source of origin in applicant…
The proposed mark immediately conveys
the information that there are
input/output devices, i.e. data ports,
forming a significant feature of the
goods themselves. A significant
feature of applicant’s microcontroller
is its data ports, for that is how the

claiming use in commerce since July 1, 1991.
Ser No. 74/621,412
4
information gets conveyed from the slot
machines to the other units. The
wording “data port” or “dataport” is
used in the industry to mean the ports
themselves…
In support of this refusal, the Examining Attorney
submitted dictionary evidence showing that a “port” is
defined as a “location for passing data in and out of a
computing device.” The Examining Attorney also submitted
copies of articles from the Nexis database in an attempt to
show that “data port” and “dataport” is a term of art in
the computer industry that refers to input/output ports,
that microcontrollers have “data ports,” and that a primary
function of microcontrollers is to interface with other
computing devices through “data ports.”
Applicant, on the other hand, argues that its mark is,
at best, suggestive of a characteristic of its goods. It
is applicant’s position that a microcontroller is not
defined as a port for data but rather is a product that
contains many of the functions found in any computing
system.
While microcontrollers contain small
i/o [input/output] ports so that they
may, inter alia, communicate with other
devices, microcontrollers are computer
systems with many other features and
components. A microcontroller cannot
merely be defined as a port. Data does
not define a microcontroller… These two
Ser No. 74/621,412
5
terms, when combined, do not define a
microcontroller unit…
…Some thought process is necessary in
order to arrive at the conclusion that
Appellant’s microcontroller can include
ports to transfer data… The fact that
the microcontroller includes a means to
transfer the data is irrelevant to the
purchaser…
…The combination of these two words as
a unitary mark results in an arbitrary
mark. That is, purchasers of the goods
are not buying input/output ports for
the transmission of data; in
contradistinction, they are buying a
microcontroller to track productivity
and monitor a bank of slot machines…
Because the goods sold under the mark
“DataPort” are microcontrollers, it is
respectively submitted that, at best,
the phrase “DataPort” may be suggestive
only of a characteristic of the
product.
Upon careful examination of the evidence of record and
the arguments of the attorneys, we do not believe that the
Examining Attorney has demonstrated that DATAPORT is merely
descriptive of applicant’s microcontrollers. While some of
the evidence of record shows that the words “data port” are
used in relatively close proximity to the word
“microcontroller” (some examples of which are noted below),
we do not believe that this is sufficient to show that the
asserted mark is merely descriptive of applicant’s goods.
The VP22002 kernel processor implements
channel coding and decoding,
Ser No. 74/621,412
6
equalization and control links to the
RF section using an embedded 32-bit
ARM6 RISC microcontroller.
VLSI Technology has modified the
architecture slightly in the lower-
voltage VP22003 kernel processor. The
company said it has shaved
approximately $2.50 from system costs
by integrating the channel coder RAM,
previously a separate chip, into the
main memory. The total chip-set pin
count has been reduced by repackaging
the devices in 100-pin and 144-pin thin
quad flat packs.
The kernel processor includes approved
functional blocks for channel coding,
equalization, Gaussian mean-shift-key
modulation and timing generation. It
also offers an asynchronous data port…
Electronic Engineering Times, March 25,
1996
* * * * * *
It also supports the insertion of
compressed video and audio “clips” by
the host microcontroller. The VES2020
DRAM controller supports up to 1 MB of
16-bit wide, page mode DRAM. This DRAM
is used for the storage of parametric
data and program input from the host
microprocessor, extended channel-rate
buffering for audio, video and host
data and also furnishes storage for
firmware. Additional interfaces in the
VES2020 are a high-speed serial data
port which directly outputs
demultiplexed compressed data, an
interface for attaching an external
descrambler, and an VC bus interface
for command and control.
IAC Newsletter Database, October 25,
1995
* * * * * *
Ser No. 74/621,412
7
Data moves through four ports: a
dedicated output to the print engine, a
dedicated scanner input, an 8-bit
microcontroller interface and a 32-bit
data port. The latter is designed for
connection to a direct memory access
(DMA) or bus-master controller and
serves as the chip’s connection to
memory.
Electronic Engineering Times, June 5,
1995
* * * * * *
“In addition to the four general-purpose
digital outputs, the MC145173 allows
direct interface to Motorola’s SP1 data
port,” Babin said, “supporting 68HC11 and
selected 68HC05 8-bit microcontrollers
(CMUs)…”
Edge, May 22, 1995
* * * * * *
The record also contains some references to
“microcontroller ports” and “microcontrollers with port
expansion.” We also note that, while we could find
definitions of “data” and “port” (“A place of access to a
system or circuit”) in computer dictionaries, we could find
no entry for “data port” alone. Suffice it to say that we
are not persuaded that the asserted mark merely describes a
feature, characteristic or function of applicant’s
microcontrollers. Moreover, with respect to the issue of
mere descriptiveness, if we have doubt on this matter, that
doubt must be resolved in favor of publication.
The Likelihood of Confusion Refusal
Ser No. 74/621,412
8
The Examining Attorney has refused registration under
Section 2(d) on the basis of Registration No. 1,834,432,
issued May 3, 1994, for the mark DATAPORT for modems. It
is undisputed that modems are devices that convert digital
signals into analog signals and vice versa so that
computers can communicate over telephone lines. It is the
Examining Attorney’s position that modems are controlled by
microprocessors and, therefore, rely on microcontrollers to
perform timing tasks and for changing modes of operation.
The Examining Attorney argues that microcontrollers are
enhanced microprocessors that direct the flow of data in
computer systems. They contain microprocessors and
peripherals. It is the Examining Attorney’s position,
therefore, that the goods are related.
Both are computer hardware devices that
control the flow of data. Modems
“convert data from digital signals to
analog signals and vice versa, so that
computers can communicate over
telephone lines”… Microcontrollers are
small computer systems that use a
microprocessor as their CPU (central
processing unit), and contain memory
and peripherals, such as input/output
devices, on a single chip…
Microcontrollers control the flow of
data. They also control
microprocessors… and microprocessors
are the CPUs of microcontrollers.
The microcontroller’s job is to
“collect, validate, and store data from
the individual slot machines,” and to
Ser No. 74/621,412
9
communicate the data to “Sentinel II
units” and the “Polling computer”…
Each microcontroller can communicate
with up to 31 Sentinel II units. Thus,
the functions of applicant’s
microcontroller and registrant’s modems
overlap.
…Modems enable a computer to transmit
data over telephone lines. “Any
external modem can be attached to any
computer that has an RS-232 port”…
Applicant’s OASIS system of which the
DATAPORT unit is a part, uses RS-232
lines for communications. The DATAPORT
units themselves have ports marked
“AUX,” or auxiliary, which may also use
and RS-232 line… Applicant’s specimens
show at least 8 cables emanating from
the body of the microcontroller that
appear to be connected to ports on the
back of the device, and the brochure
submitted with the specimen appears to
show the ports themselves, including
the one marked “AUX.”
A modem is functionally related to a
microcontroller. Both control the flow
of data, enabling communication between
computers and other devices. Because
the microcontroller contains the
microprocessor, which is considered the
“heart” of the computer, when a
computer sends signals, it does so in
digital mode, and the modem is required
to convert those signals into analog
mode so that the signals can be
transmitted to another computer via
telephone lines. The modem is hooked
up to the computer by means of a port…
Therefore, a modem works hand-in-glove
with a microcontroller.
Modems are used when signals are
transmitted computer-to-computer via
telephone lines. As stated in
applicant’s literature, the OASIS II
Ser No. 74/621,412
10
“is capable of communicating to other
vendor’s on-line and off-line systems”…
Thus, the Oasis hardware communicates
not only within the Oasis system, which
includes the Sentinel boards, card
readers, and microcontrollers having
data ports, but also communicates with
outside, “off-line” systems. “Select
data may be transferred to other
computer systems and mainframe systems
through batch transfers of ASCII data,
serial communication, direct
networking, or PC-Support (to an
AS/400).” Data that is transported via
serial communication is often
transported by means of modems… It is
not unlikely that applicant’s hardware
uses modems to communicate to any off-
line systems to which it sends data.
Thus, prospective purchasers would be
likely to encounter applicant’s goods
used in a functional relationship with
registrant’s goods, and would expect
those goods to emanate from a single
source.
The Examining Attorney argues that registrant’s modems
are not restricted as to any specific channels of trade and
could operate in a gaming environment, being sold to casino
managers and owners. According to the Examining Attorney,
a DATAPORT modem could conceivably be used in conjunction
with computer hardware hooked into the DATAPORT
microcontroller.
Applicant, on the other hand, argues that purchasers
of registrant’s modems would not be likely to encounter
applicant’s goods primarily because casino managers and
owners are an “insular, sophisticated group” who use care
Ser No. 74/621,412
11
before installing applicant’s expensive equipment.
Applicant also argues that modems, which transform signals
from a computer so that they are compatible with a
telephone, are far removed from applicant’s
microcontrollers used in a gaming environment for the
purpose of monitoring a bank of slot machines.
Even if the purchasers of Appellant’s
microcontrollers were to encounter
AT&T’s [registrant’s] modem…, they
would not be confused. This is because
casino managers and owners are an
insular, sophisticated group who make
astute decisions before installing
expensive instrumentalities such as
Appellant’s product. Moreover,
Appellant’s channels of trade such as
trade shows and trade magazines are
narrowly tailored to expose its product
specifically to this sophisticated
group and no one else.
Applicant’s brief, 16-17. Applicant argues that
registrant’s modems are not “intimately related” to
applicant’s goods.
As both attorneys agree, it is not necessary that the
goods of the parties be identical or competitive to support
a holding of likelihood of confusion. It has been held
that it is sufficient that the respective goods of the
parties be related in some manner and/or that the
conditions and activities surrounding the marketing of the
goods be such that they would be encountered by the same
Ser No. 74/621,412
12
persons. See, for example, In re International Telephone
and Telegraph Corp., 197 USPQ 910 (TTAB 1978). While it is
true that applicant’s goods, in accordance with the
description in its application, are only sold to or used by
casinos, there is no restriction of any kind in the cited
registration. Accordingly, we must presume that
registrant’s modems are sold to all potential purchasers
for those goods.
While applicant’s microcontrollers and registrant’s
modems may both be termed computer-related devices, we are
not persuaded, on this record, that modems are a part of
applicant’s DATAPORT system and/or that modems would be
needed as replacement parts for the system. There is also
nothing in this record to show that the same company or
companies make both modems and microcontrollers. If there
were such evidence, that could help demonstrate that
potential purchasers would believe that these goods come
from the same source. Therefore, and because there has
been no showing that casino owners or managers would
purchase modems in connection with any type of slot machine
monitoring system, we do not believe that the Examining
Attorney has sustained her burden of demonstrating that
confusion is likely.
Ser No. 74/621,412
13
Decision: The refusal of registration on both grounds
is reversed.
R. L. Simms
E. W. Hanak
C. E. Walters
Administrative
Trademark Judges,
Trademark Trial and
Appeal Board