EX (T.T.A.B. Oct. 24, 2018)

Hollywood Casinos, LLC

Trademark Trial and Appeal BoardOct 24, 2018

EX (T.T.A.B. Oct. 24, 2018)

This Opinion is Not a Precedent of the TTAB Hearing: October 10, 2018 Mailed: October 24, 2018 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Hollywood Casinos, LLC _____ Serial No. 87210257 Serial No. 87210260 Serial No. 87210265 (Consolidated) _____ Hara K. Jacobs and Jenna M. Loadman of Ballard Spahr LLP for Hollywood Casinos, LLC. Florentina Blandu, Trademark Examining Attorney, Law Office 117, Travis Wheatley, Managing Attorney. _____ Before Shaw, Lynch, and Larkin, Administrative Trademark Judges. Opinion by Larkin, Administrative Trademark Judge: Hollywood Casinos, LLC (“Applicant”) seeks registration on the Principal Register of the three marks shown below, all for “Computer and electronic game software; interactive video game programs; computer game software for use on mobile devices; computer game programs downloadable via the Internet,” in International Class 9, and “Entertainment services, namely, providing temporary use of non-downloadable online computer and electronic games,” in International Class 41: Serial Nos. 87210257, 87210260, and 87210265 (Consolidated) - 2 - 1. HOLLYWOOD CLASSIC SLOTS in standard characters; 2. and 3. 1 The Trademark Examining Attorney has refused registration of each mark under Sections 2(e)(1) and 6 of the Trademark Act, 15 U.S.C. §§ 1052(e)(1) and 1056, on the ground that the term CLASSIC SLOTS is merely descriptive of Applicant’s goods and services and must be disclaimed as a prerequisite to registration. After the Examining Attorney made the refusal finals, Applicant appealed in each case and requested reconsideration, which was denied. 1 Application Serial No. 87210257 to register the standard character mark, Application Serial No. 87210260 to register the first composite mark, and Application Serial No. 87210265 to register the second composite mark, were all filed on October 20, 2016 under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), on the basis of Applicant’s allegation of first use and first use in commerce of each of the marks in September 2016. Applicant has disclaimed the exclusive right to use SLOTS in each application. Serial Nos. 87210257, 87210260, and 87210265 (Consolidated) - 3 - Following the filing of Applicant’s main briefs, the Board consolidated the three appeals on Applicant’s motions. 12 TTABVUE (Serial Nos. 87210257, 87210260, and 87210265). The consolidated appeals are fully briefed,2 and counsel for Applicant and the Examining Attorney appeared at an oral hearing before the panel on October 10, 2018. We affirm the refusals to register without disclaimers of CLASSIC SLOTS. I. Records on Appeal The pertinent portions of the records on appeal in each case are identical,3 and contain the following: 1. Applicant’s specimens of use; 2. Third-party registrations of marks containing the words CLASSIC or SLOTS for various goods and services in which the respective words have been disclaimed, either singly or with other matter, or in which the registrations issued on the Supplemental Register, made of record by the Examining Attorney;4 3. Definitions of the word “classic” from THE AMERICAN HERITAGE DICTIONARY (ahdictionary.com) and the word “slot” from the MERRIAM-WEBSTER 2 Citations to Applicant’s main briefs are to the brief in the TTABVUE file in Serial No. 87210257. The Examining Attorney filed a consolidated brief, and Applicant filed a consolidated reply brief. 3 The record in Serial No. 87210265 contains materials pertaining to Applicant’s disclaimer of 10X that are not germane to the issues on appeal. We will cite the records by reference to pages in the Trademark Status & Document Retrieval (“TSDR”) file histories. In each case, the office actions were issued, and Applicant’s responses and requests for reconsideration were filed, on the same dates, and we will cite those documents in the singular. 4 February 6, 2017 Office Action at 2-37; February 7, 2018 Denial of Request for Reconsideration at 3-26. Serial Nos. 87210257, 87210260, and 87210265 (Consolidated) - 4 - DICTIONARY (merriam-webster.com), made of record by the Examining Attorney;5 4. Third-party registrations of marks containing the word CLASSIC for various goods and services in which the word has not been disclaimed, made of record by Applicant;6 5. News articles containing the term “Hollywood classic,” made of record by Applicant;7 6. Webpages displaying the term “classic slots,” or the word “classic” in close proximity to the word “slots,” in references to slot machines, made of record by the Examining Attorney;8 7. Wikipedia pages and other webpages regarding the history of slot machines, made of record by Applicant;9 and 8. Webpages regarding different types of slot machines, including online slot machines, made of record by Applicant.10 5 February 6, 2017 Office Action at 38-41. 6 May 18, 2017 Response to Office Action at 13-104. 7 Id. at 106-149. 8 July 13, 2017 Office Action at 2-13; February 7, 2018 Denial of Request for Reconsideration at 2, 27-49. 9 January 16, 2018 Request for Reconsideration at 13-47. 10 Id. at 48-58. Serial Nos. 87210257, 87210260, and 87210265 (Consolidated) - 5 - II. Disclaimer Requirements A. Applicable Law Under Section 6(a) of the Trademark Act, 15 U.S.C. § 1056(a), “[t]he Director may require the applicant to disclaim an unregistrable component of a mark otherwise registrable.” Failure to comply with a disclaimer requirement is a basis for refusing registration of the entire mark. In re Slokevage, 441 F.3d 957, 78 USPQ2d 1395, 1399- 1400 (Fed. Cir. 2006); In re Stereotaxis, Inc., 429 F.3d 1039, 77 USPQ2d 1087, 1089 (Fed. Cir. 2005). The Examining Attorney has required a disclaimer of the term CLASSIC SLOTS in each application on the ground that the term is “merely descriptive” of the goods and services identified in each application within the meaning of Section 2(e)(1) of the Trademark Act, which prohibits registration on the Principal Register of “a mark which, (1) when used on or in connection with the goods of the applicant is merely descriptive . . . of them,” unless the mark has been shown to have acquired distinctiveness under Section 2(f) of the Trademark Act, 15 U.S.C. § 1052(f).11 A term is “merely descriptive” within the meaning of § 2(e)(1) “if it immediately conveys information concerning a feature, quality, or characteristic of the goods or services for which registration is sought.” In re N.C. Lottery, 866 F.3d 1363, 123 USPQ2d 1707, 1709 (Fed. Cir. 2017) (citing In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007)). A term “need not immediately convey 11 Applicant did not make a claim of acquired distinctiveness as to the term CLASSIC SLOTS during prosecution of the applications. Serial Nos. 87210257, 87210260, and 87210265 (Consolidated) - 6 - an idea of each and every specific feature of the goods [or services] in order to be considered merely descriptive; it is enough if it describes one significant attribute, function or property of the goods [or services].” In re Fat Boys Water Sports LLC, 118 USPQ2d 1511, 1513 (TTAB 2016) (citing In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1010 (Fed. Cir. 1987)).12 Whether a term is merely descriptive is “evaluated ‘in relation to the particular goods [or services] for which registration is sought, the context in which the mark is used, and the possible significance the term would have to the average consumer because of the manner of its use or intended use,’” Chamber of Commerce, 102 USPQ2d at 1219 (quoting Bayer, 82 USPQ2d at 1831), and “not in the abstract or on the basis of guesswork.” Fat Boys, 118 USPQ2d at 1513 (citing In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA 1978)). “In other words, we evaluate whether someone who knows what the goods [or services] are will understand the mark to convey information about them.” Id. at 1515 (citing DuoProSS Meditech Corp. v. Inviro Med. Devices Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012)).13 Because the term CLASSIC SLOTS involves the combination of two words, we are “required to examine the meaning of each component individually, and then 12 A “mark need not be merely descriptive of all recited goods or services in an application. A descriptiveness refusal is proper ‘if the mark is descriptive of any of the [goods or] services for which registration is sought.’” In re Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012) (quoting Stereotaxis, 77 USPQ2d at 1088). 13 A term is suggestive, and not merely descriptive, if it requires imagination, thought, and perception on the part of someone who knows what the goods or services are to reach a conclusion about their nature from the term. See, e.g., Fat Boys, 118 USPQ2d at 1515. Serial Nos. 87210257, 87210260, and 87210265 (Consolidated) - 7 - determine whether the [term] as is whole is merely descriptive.” DuoProSS, 103 USPQ2d at 1758. We “may not ‘dissect’ the [term] into isolated elements, without ever consider[ing] . . . the entire [term, but we] may weigh the individual components of the [term] to determine the overall impression of the [term] and its various components.” Real Foods Pty Ltd. v. Frito-Lay N. Am., Inc., Nos. 2017-1959, 2017- 2009, 2018 WL 4781153, 2018 U.S. App. LEXIS 28099 at *8 (Fed. Cir. Sept. 21, 2018 sealed op. and Oct. 4, 2018 public op.) (internal quotations and citations omitted). If the words CLASSIC and SLOTS are individually descriptive of the goods and services in the applications, we must determine whether their combination in Applicant’s marks “‘conveys any distinctive source-identifying impression contrary to the descriptiveness of the individual parts.’” Fat Boys, 118 USPQ2d at 1515-16 (quoting In re Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1372 (Fed. Cir. 2003)). If each word instead “retains its merely descriptive significance in relation to the goods [and services], the combination results in a composite that is itself merely descriptive.” Fat Boys, 118 USPQ2d at 1516 (citing In re Tower Tech., Inc., 64 USPQ2d 1314, 1317-18 (TTAB 2002)); see also In re Mecca Grade Growers, LLC, 125 USPQ2d 1950, 1953-55 (TTAB 2018). Evidence that a term is merely descriptive to the relevant purchasing public may be obtained from any competent source, such as dictionaries, newspapers, surveys, labels, packaging, or advertising materials. Id. at 1953 (citing Bayer, 82 USPQ2d at 1831 and Abcor, 200 USPQ at 218). “It may also be obtained from Applicant’s own Serial Nos. 87210257, 87210260, and 87210265 (Consolidated) - 8 - specimen of use and any explanatory text included therein.” Id. (citing N.C. Lottery, 123 USPQ2d at 1710). The Examining Attorney bears the burden of showing that the term CLASSIC SLOTS is merely descriptive, and must be disclaimed. Fat Boys, 118 USPQ2d at 1513.14 “If such a showing is made, the burden of rebuttal shifts to the applicant.” Id. B. The Examining Attorney’s Evidence and Arguments The Examining Attorney argues that within the term CLASSIC SLOTS, the word CLASSIC means “of a well-known type or class,”15 and the word SLOTS means “slot machine,” and that Applicant “is offering goods and services used in connection with slot machines and/or games that resemble slot machines of a well-known type.” 13 TTABVUE 5-6. She relies primarily on Internet evidence showing “that the term 14 It its reply brief, Applicant argues that “the issue on appeal is not whether the phrase ‘CLASSIC SLOTS’ describes a feature of Applicant’s goods and services,” but rather “whether the Examining Attorney has met the burden of establishing that the phrase ‘CLASSIC SLOTS,’ as applied to electronic gaming software, is merely descriptive, requiring the entry of a disclaimer of the entire phrase.” 14 TTABVUE 4. This is an artificial distinction. If we find that the record as a whole shows that “the phrase ‘CLASSIC SLOTS’ describes a feature of Applicant’s goods and services,” id., the Examining Attorney necessarily will have carried her burden and we may affirm the refusals to register, even if we rely on different evidence or a different analysis in concluding that the term CLASSIC SLOTS is merely descriptive. The “Board reviews an Examining Attorney’s decision on appeal to determine if the refusal to register was correctly made. In doing so, the Board need not adopt the rationale of the Examining Attorney.” In re AFG Indus. Inc., 17 USPQ2d 1162, 1163 (TTAB 1990) (citing In re Avocet, 227 USPQ 566 (TTAB 1985)); see also In re Eagle Crest Inc., 96 USPQ2d 1227, 1229 (TTAB 2010) (in affirming a refusal to register, the Board may “may rely on a different rationale” from the one relied on by the examining attorney). 15 The Examining Attorney initially advanced another meaning of CLASSIC (“belonging to the highest rank or class”) in finding that CLASSIC SLOTS was merely descriptive. February 6, 2017 Office Action at 1. She states in her brief that “based on later evidence and analysis and the information provided by applicant, in this contexts [sic] the proper definition of ‘CLASSIC’” is “of a well-known type or class . . . .” 13 TTABVUE 5. Serial Nos. 87210257, 87210260, and 87210265 (Consolidated) - 9 - CLASSIC SLOTS has a meaning within the video game industry.” Id. at 6.16 We reproduce below the pertinent portions of a number of the webpages: 17 18 16 As noted above, the Examining Attorney made of record third-party registrations of marks in which the word CLASSIC has been disclaimed, or which issued on the Supplemental Register, but she does not rely on this evidence on appeal. 17 July 13, 2017 Office Action at 2 (iTunes Preview). 18 Id. at 3. Serial Nos. 87210257, 87210260, and 87210265 (Consolidated) - 10 - 19 20 19 Id. at 5 (iTunes Preview). 20 Id. at 6-7. Serial Nos. 87210257, 87210260, and 87210265 (Consolidated) - 11 - 21 21 Id. at 9-10. Serial Nos. 87210257, 87210260, and 87210265 (Consolidated) - 12 - 22 23 22 Id. at 11. 23 Id. at 13. Serial Nos. 87210257, 87210260, and 87210265 (Consolidated) - 13 - 24 25 24 February 7, 2018 Denial of Request for Reconsideration at 28 (first part of App Store Preview page). 25 Id. at 33 (first part of page). Serial Nos. 87210257, 87210260, and 87210265 (Consolidated) - 14 - 26 26 Id. at 38-39 (first two pages). Serial Nos. 87210257, 87210260, and 87210265 (Consolidated) - 15 - C. Applicant’s Evidence and Arguments Applicant concedes the descriptiveness of the word SLOTS as a shorthand for “slot machines,” and focuses its arguments entirely on the word CLASSIC.27 In support of its position that the word CLASSIC is suggestive, not descriptive, Applicant makes several interrelated arguments, which we summarize immediately below. First, Applicant argues that CLASSIC is “too vague to immediately impart any information about the quality or characteristic of Applicant’s mobile casino gaming products.” 9 TTABVUE 11. According to Applicant, “consumers must exercise a high degree of imagination to determine what features such products and services have,” id., and that “[c]onsiderable imagination is required to determine from the myriad slot and casino games available to customers, what type of game is a ‘classic slot’ game.” Id. at 15. Second, Applicant argues that CLASSIC “has a number of different meanings,” including “‘standard’, ‘of a well-known type’, ‘formal and refined’, or ‘enduring.’” Id. at 12. Applicant claims that “context is especially important in this case to determine which meaning should be ascribed to the term.” Id. at 13. Applicant complains that the “Examining Attorney has not articulated what quality or attribute of Applicant’s goods or services is directly described through Applicant’s use of the word ‘CLASSIC’.” Id. In its reply brief, Applicant argues, in response to the Examining Attorney’s 27 Applicant argues that the “evidence relevant to this appeal is the evidence tending to show or not show the descriptiveness of the word ‘CLASSIC,’” and explains that “[e]vidence showing only that the word ‘SLOT’ is descriptive is not referenced in Applicant’s brief because Applicant has already agreed to disclaim exclusive rights to such term.” 9 TTABVUE 9 n.1. Serial Nos. 87210257, 87210260, and 87210265 (Consolidated) - 16 - reliance on the meaning of “classic” as something “of a well-known type,” that the “Examining Attorney puts forth no evidence or argument which show what a ‘well- known type’ slot machine is or that consumers attribute a specific meaning to a ‘CLASSIC’ slot machine.” 14 TTABVUE 6. Third, Applicant criticizes the Examining Attorney’s evidence of third-party registrations in which CLASSIC has been disclaimed because “the Examining Attorney incorrectly considered the mark in relation to goods and/or services not provided by Applicant under its mark,” 9 TTABVUE 14,28 and touts its own third- party registrations, which it claims cover “goods/services identical to those described” in its applications, and show that CLASSIC “often carries a vague and suggestive connotation in relation to these goods.” Id. Fourth, Applicant criticizes the Examining Attorney’s Internet evidence on the ground that it shows that third-party use of the term CLASSIC SLOTS “for mobile gaming products and services is very infrequent,” id. at 16, and that “[t]hird-parties are eminently able to offer casino gaming applications without using ‘CLASSIC SLOTS’ to identify their products.” Id. D. Analysis of the Purchasing Public’s Understanding of CLASSIC SLOTS As discussed above, evidence of whether the relevant purchasing public understands the term CLASSIC SLOTS to describe a feature of Applicant’s goods and services may come from any competent source. N.C. Lottery, 123 USPQ2d at 1709-10. 28 As noted above, the Examining Attorney does not rely on this evidence on appeal, and neither do we. Serial Nos. 87210257, 87210260, and 87210265 (Consolidated) - 17 - In N.C. Lottery, the Federal Circuit reviewed the Board’s determination that the mark FIRST TUESDAY was merely descriptive of the applicant’s lottery cards, scratch cards for playing lottery games, and lottery services, because the mark communicated to consumers that new versions of the games would be offered on the first Tuesday of each month. Our primary reviewing court held that in reaching that conclusion, the Board had not erred in considering explanatory text in the applicant’s specimen that read “New scratch-offs the first Tuesday of every month.” Id. at 1708- 10. The court rejected the applicant’s arguments that “any explanatory text in such specimens cannot supply additional meaning to a mark when ‘the mark itself does not convey that meaning,’” id. at 1709 (citation omitted), and that “‘the fact that N.C. Lottery found it necessary to explain the connection between the mark and [its] goods and services shows that the mark is not descriptive.” Id. at 1710 (citation omitted). The court concluded that the Board had correctly found that “[t]he commercial context here demonstrates that a consumer would immediately understand the intended meaning of FIRST TUESDAY.” Id. The commercial context in these appeals similarly shows that consumers of Applicant’s goods and services would immediately understand the intended descriptive meaning of the term CLASSIC SLOTS. According to Applicant, “[s]lot gaming is one of the most popular forms of electronic and mobile game play,” and many different slot games are available, including reel slots, video slots, progressive slots, bonus slots, 3D slots, and penny slots. 14 TTABVUE 8. Applicant claims that its applications cover a particular type of “mobile gaming products and services that Serial Nos. 87210257, 87210260, and 87210265 (Consolidated) - 18 - will deliver to consumers the same familiarity and emotions of the slot gaming experience that a land-based casino delivers.” 9 TTABVUE 11. Applicant states that the “3-reel or 5-reel slot machine has been a mainstay in the casino gaming industry since its first introduction 100 years ago and is most closely associated with slot gambling games,” id., and that the term CLASSIC SLOTS in its marks “is a nod to the 3-Reel or 5-Reel slots that have hooked professional and amateur gamblers alike from the first pull of the slot machine lever.” Id. As Applicant puts it, the word CLASSIC “suggests the characteristic or quality of a vintage slot machine, which consists of three-spinning reels marked with diamonds, hearts, horseshoes, spades, and the liberty bell,” id. at 15, and “the phrase ‘CLASSIC SLOTS’ connects consumers with a visual of the slot machines of yesteryear with a new millennium twist.” Id. at 17. Against this backdrop, Applicant’s specimens show that prospective purchasers of Applicant’s goods and services will understand the term CLASSIC SLOTS to be intended to refer to the vintage three- and five-reel slots that Applicant states have been the historic mainstays of land-based casinos. Applicant’s Class 9 specimens, which it describes in its applications as “website . . . pages showing the mark and describing the services with information and instructions on how to download or play the game online or on smart devices,” include the page reproduced in pertinent part below: Serial Nos. 87210257, 87210260, and 87210265 (Consolidated) - 19 - 29 The text explaining the nature of Applicant’s slots app indicates that consumers would immediately understand that when the term CLASSIC SLOTS is used in the applied-for marks, it describes mobile games and related services that enable users to replicate playing the type of “classic slot machines” that might be found in a land- based casino in “the heart of Vegas.” No definition of “classic slot machines” is provided, but none is needed because the specimen states that consumers are already “familiar” with their “favorite slots,” such as the five-reel slot machine depicted above the text. As in N.C. Lottery, “the explanatory text accompanying the mark [HOLLYWOOD CLASSIC SLOTS] is not complicated,” and it “describes the relevant 29 This page’s text is repeated on an iTunes Preview page submitted as a specimen of Applicant’s composite marks. Serial Nos. 87210257, 87210260, and 87210265 (Consolidated) - 20 - feature or characteristic of [Applicant’s] games,” 123 USPQ2d at 1710, namely, that they replicate the playing of well-known traditional or vintage three- and five-reel slot machines. Applicant’s specimens in Serial No. 87210257 include the page reproduced in pertinent part below: This webpage lists CLASSIC SLOTS as a category of games, and similarly describes Hollywood Classic Slots games as ones that enable consumers to “spin and win with your favorite 3 and 5 reel style slots.” The descriptive nature of the term CLASSIC SLOTS reflected on Applicant’s specimens is corroborated by the use of the term in the Internet evidence made of record by the Examining Attorney and reproduced above. Like Applicant’s specimens, the third-party webpages do not provide a uniform or precise definition of “classic slots,” but they too use the term to refer to well-known types of traditional or vintage Serial Nos. 87210257, 87210260, and 87210265 (Consolidated) - 21 - three- and five-reel machines found in land-based casinos, as shown on several of the pages: 30 31 Based on the record as a whole, including Applicant’s specimens, we find that the Examining Attorney established prima facie that the term CLASSIC SLOTS is merely descriptive of the nature of the mobile slot games sold by Applicant, and the subject of the services of making those games available to consumers online. 30 July 13, 2017 Office Action at 3. 31 Id. at 38-39. Serial Nos. 87210257, 87210260, and 87210265 (Consolidated) - 22 - Applicant’s evidence and arguments in response to this showing do not rebut the prima facie descriptiveness of the term. Applicant’s various arguments that the word CLASSIC is vague and susceptible of different meanings, 9 TTABVUE 11-15, beg the question of the meaning of the term CLASSIC SLOTS. Indeed, Applicant’s entire focus on the word CLASSIC alone is misplaced because when CLASSIC is used in Applicant’s mark, it functions as an adjective that modifies the noun SLOTS, and we thus must determine the meaning of CLASSIC as part of the term CLASSIC SLOTS, not in isolation. As discussed above, the record shows that in the context of Applicant’s goods and services, the term CLASSIC SLOTS in the applied-for marks refers to well-known types of traditional or vintage three- or five-reel slot machines. Applicant’s reliance on third-party registrations of marks consisting of the word CLASSIC alone, or containing the word CLASSIC without its disclaimer, to show that the word CLASSIC “often carries a vague and suggestive connotation in relation to” similar goods, 9 TTABVUE 14, is similarly unavailing. None of the registrations contain the term CLASSIC SLOTS, and, in any event, each application must be considered on its own merits, and neither the Examining Attorney nor the Board is bound by the actions of other examining attorneys who have issued registrations of marks consisting of or containing the word CLASSIC based on other records. See, e.g., In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001).32 32 A similar principle that each case must be decided on its own facts applies with respect to the cases cited by Applicant in which the Board has held that other marks containing the word CLASSIC were not merely descriptive of other goods. 9 TTABVUE 13 (citing In re Cuban Cigar Brands, N.V., Serial Nos. 78554795 and 78554967 (TTAB Oct. 19, 2007) (non- Serial Nos. 87210257, 87210260, and 87210265 (Consolidated) - 23 - Finally, we reject Applicant’s arguments that the Examining Attorney “submitted only a modest number of references to ‘CLASSIC SLOTS’,” 9 TTABVUE 15, and that competitors “are eminently able to offer casino gaming applications without using ‘CLASSIC SLOTS’ to identify their products.” Id. at 16. “[T]here is no requirement that the Examining Attorney prove that others have used the [term] at issue or that they need to use it, although such proof would be highly relevant to an analysis under Section 2(e)(1).” Fat Boys, 118 USPQ2d at 1514. Applicant acknowledges the use of CLASSIC SLOTS in the names of three mobile gaming applications, 9 TTABVUE 16, and as discussed and shown above, there is evidence of other descriptive uses of CLASSIC SLOTS in a manner akin to Applicant’s own descriptive use of the term on its specimens. The evidence of third-party use of CLASSIS SLOTS is probative of the descriptiveness of the term. The record as a whole shows that the term CLASSIC SLOTS is merely descriptive of Applicant’s goods and services, and we agree with the Examining Attorney that Applicant must be required to disclaim the exclusive right to use that term to preserve the right of others to use it to describe their goods and services. Decision: The refusals to register Applicant’s marks without a disclaimer of CLASSIC SLOTS are each affirmed on the ground that CLASSIC SLOTS is merely descriptive of the goods and services identified in the applications. If Applicant submits the required disclaimers of CLASSIC SLOTS within 30 days of the mailing precedential) (CLASSIC COLLECTION and MONTECRISTO CLASSIC COLLECTION for cigars and other tobacco products), and In re Classic Beverage Inc., 6 USPQ2d 1383 (TTAB 1988) (CLASSIC COLA for a soft drink)). Serial Nos. 87210257, 87210260, and 87210265 (Consolidated) - 24 - date of this decision,33 however, this decision will be set aside and the applications, as so amended, will be passed to publication for opposition. 33 Applicant should submit disclaimers in the following standardized format: “No claim is made to the exclusive right to use ‘CLASSIC SLOTS’ apart from the mark as shown.”