Livesport s.r.o.

Trademark Trial and Appeal Board

May 18, 2018

No. 87291328 (T.T.A.B. May. 18, 2018)

This Opinion is not a
Precedent of the TTAB

Mailed: May 18, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Livesport s.r.o.
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Serial No. 87291328

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John Alumit of Alumit IP,
for Livesport s.r.o.

Ellen F. Burns, Trademark Examining Attorney, Law Office 116,
Christine Cooper, Managing Attorney.
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Before Ritchie, Hightower, and Heasley,
Administrative Trademark Judges.

Opinion by Ritchie, Administrative Trademark Judge:
Livesport s.r.o (“Applicant”) seeks registration on the Principal Register of the
mark SCOREBOARD and design, as shown below, for “dissemination of information
on sporting events and sports real time results via an internet-based database;
providing an interactive website containing live sports games coverage, fixtures,
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results, statistics, lineups, standings, brackets and sports live results,” in
International Class 411:

The application contains the following description of the mark: The mark consists of
the wording “SCOREBOARD” in the color white, formed by white balls, with red
background and a white carrier in the form of a rectangle with curved corners. The
color black is not a feature of the mark, and is used only to show the white carrier.
The Trademark Examining Attorney required a disclaimer of the term
“SCOREBOARD” under Section 6(a) of the Trademark Act of 1946, 15 U.S.C.
§ 1056(a), on the ground that the term is merely descriptive of a feature, purpose
and/or intended use of Applicant’s services under Section 2(e)(1) of the Trademark
Act, 15 U.S.C. § 1052(e)(1).2
When the requirement was made final, Applicant appealed and requested
reconsideration. Although traversing the refusal, Applicant includes a disclaimer of
“SCOREBOARD” in the alternative. When the request for reconsideration was

1 Serial No. 87291328 was filed on January 6, 2017, pursuant to Section 1(a) of the Trademark
Act, 15 U.S.C. § 1051(a), alleging dates of first use and first use in commerce on December
20, 2016.
2 Applicant initially submitted a response to Office Action complying with the requirement,
but then, when the application was approved for publication, withdrew its disclaimer, stating
that “it was submitted in error.” The Examining Attorney then issued a Final Office Action
requiring the disclaimer, and this appeal ensued.
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denied, the appeal was resumed. The appeal is fully briefed. For the reasons discussed
below, the requirement is affirmed.
I. Disclaimer Requirement
A term must be disclaimed apart from the mark as shown if it is deemed to be
merely descriptive of the subject goods or services. See In re Grass GmbH, 79 USPQ2d
1600, 1603 (TTAB 2006); TRADEMARK MANUAL OF EXAMINING PROCEDURE
§ 1213.08(b) (TMEP) (Oct. 2017). A term is deemed to be merely descriptive of goods
or services, within the meaning of Section 2(e)(1), if it forthwith conveys an immediate
idea of an ingredient, quality, characteristic, feature, function, purpose or use of the
goods or services. See In re Chamber of Commerce of the U.S., 675 F.3d 1297, 102
USPQ2d 1217, 1219 (Fed. Cir. 2012) (citing In re Gyulay, 820 F.2d 1216, 3 USPQ2d
1009 (Fed. Cir. 1987)); see also In re Abcor Development Corp., 588 F.2d 811, 200
USPQ 215, 217-18 (CCPA 1978). Whether a term is merely descriptive is determined
not in the abstract, but in relation to the goods or services for which registration is
sought, the context in which it is being used on or in connection with those goods or
services, and the possible significance that the term would have to the average
purchaser of the goods or services because of the manner of its use. That a term may
have other meanings in different contexts is not controlling. In re Bright-Crest, Ltd.,
204 USPQ 591, 593 (TTAB 1979).
The Examining Attorney argues that the term “SCOREBOARD” is merely
descriptive of Applicant’s services:
Specifically, the term “scoreboard,” in the context of the provision of
sports information refers to the presentation of game/match
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information, such as scheduled events and statistics that may be
relevant to any particular participant or event, e.g., performance
measures for a specified position on a team collected from past events.3

In this regard, the Examining Attorney submitted evidence that various third
parties use the term “SCOREBOARD” on their websites to provide information about
results, statistics, or standings. Some examples include the following images:4

3 6 TTABVUE 6.
4 Attached to April 25, 2017 Office Action, at 7, 8; August 30, 2017 Final Office Action, at 6,
9.
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With the Denial of Request for Reconsideration, the Examining Attorney also
included a printout of an interactive website with an article explaining how to adjust
the “Scoreboard Ribbon.”5 The Examining Attorney additionally included as an
example of descriptive use, Applicant’s own website, with the wording “All scores, one
Scoreboard!”:6

5 Attached to November 16, 2017 Denial of Request for Reconsideration, at 8.
6 Attached to November 16, 2017 Denial of Request for Reconsideration, at 4.
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Applicant argues that the term “SCOREBOARD” is defined as a physical object,
and thus is not something that can be transposed onto software for mobile phones.
Applicant submitted a dictionary definition:
Scoreboard: a large, usually rectangular board in a ballpark, sports
arena, or the like, that shows the score of a contest and often other
relevant facts and figures, as the count of balls and strikes on a baseball
batter; a board for displaying the score of a game or match.7

In this regard, Applicant argues that the term has been disclaimed in third-party
registrations where the identification of goods includes a physical scoreboard, rather
than an electronic depiction of one. Applicant submitted with its request for
reconsideration nine third-party registrations owned by four third parties that
contain the term SCOREBOARD, with a disclaimer thereof, for physical renditions
of scoreboards or related displays.8 As pointed out by the Examining Attorney,
however, this shows only that where a physical scoreboard is identified, a disclaimer
of the term “SCOREBOARD” has been required.9
Applicant meanwhile argues that the term “SCOREBOARD” has been registered
for other goods and services without a disclaimer. These include
CYBERSCOREBOARD (Registration No. 2194533) for “providing sports information
by means of on-line computer services”; SCOREBOARD MONTHLY (Registration

7 Submitted with Applicant’s June 21, 2017 Post-Approval/Publication/Post-Notice of
Allowance Amendment, citing Collins English Dictionary, Complete & Unabridged 10th
Edition. HarperCollins Publishers. 21 Jun 2017. Dictionary.com. Applicant also submitted a
printout of the definition with its appeal brief. 4 TTABVUE 11, 13.
8 Attached to October 12, 2017 Request for Reconsideration, at 25-33.
9 6 TTABVUE 10.
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No. 3939581) for “publications, namely magazines in the fields of sports”;
SCOREBOARD (Registration No. 4837067) for “on-line test preparation for college-
level tests” and GREEN TRANSITION SCOREBOARD (Registration No. 3837469)
for “tracking and monitoring the amount of private investment in companies engaged
in the development of environmentally sustainable technologies . . . ”10 We note that
these goods and services are, of course, different than those identified by Applicant.
Furthermore, as regards all of the third-party registrations submitted, the USPTO
must examine each application on its own merits based on the record in the
application under consideration and neither the USPTO’s examining attorneys nor
the Board are bound by the decisions of other examining attorneys in other
applications. See In re Cordua Restaurants, Inc., 823 F.3d 594, 118 USPQ2d 1632,
1635 (Fed. Cir. 2016) (“The PTO is required to examine all trademark applications
for compliance with each and every eligibility requirement . . . .”); In re Nett Designs,
Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (“Even if some prior
registrations had some characteristics similar to Nett Designs’ application, the PTO’s
allowance of such prior registrations does not bind the Board or this court.”).
Accordingly, these registrations are not very availing in our analysis.
Although Applicant argues that the websites submitted by the Examining Attorney
show electronic renditions of physical scoreboards, we find that this would not render

10 Attached to June 21, 2017 Post-Approval/Publication/Post-Notice of Allowance
Amendment, at 2-5. A fifth registration was shown to be cancelled. Expired or cancelled
registrations are generally considered evidence only that the registration issued. See TBMP
§ 1208.02.
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the term any less descriptive, simply because the websites depict an electronic
representation of a physical scoreboard. Rather, based on the third-party evidence
and Applicant’s own website, we find that the term “SCOREBOARD,” when viewed
in relation to Applicant’s services, immediately conveys that Applicant’s
“dissemination of information on sporting events and sports real time results via an
internet-based database; providing an interactive website containing live sports
games coverage, fixtures, results, statistics, lineups, standings, brackets and sports
live results,” may have the feature or characteristics of a scoreboard. While doubt is
resolved for Applicant, we have no doubt that consumers require no imagination,
thought or perception to arrive at this conclusion. See DuoProSS Meditech Corp. v.
Inviro Med. Devices, Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1755 (Fed. Cir. 2012).
Therefore, we find that the mark is merely descriptive of the identified services, and
we affirm the refusal to register absent a disclaimer.
Decision: The requirement for a disclaimer of “SCOREBOARD” under Section
6(a) of the Trademark Act, 15 U.S.C. § 1056(a), on the ground that the term is merely
descriptive of Applicant’s goods under Section 2(e)(1), 15 U.S.C. § 1052(e)(1), is
affirmed. Because Applicant consented to entry of a disclaimer in the alternative, the
application will proceed to publication in due course with a disclaimer of the term
“SCOREBOARD,” worded as follows: “No claim is made to the exclusive right to use
‘SCOREBOARD’ apart from the mark as shown.” See TMEP § 1213.08(a)(i)
(October 2017).