McDermott

Trademark Trial and Appeal Board

Aug 31, 2000

No. 75358638 (T.T.A.B. Aug. 31, 2000)

Hearing: Paper No. 16
March 15, 2000 HRW
8/31/00
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re McDermott
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Serial No. 75/358,638
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Thomas P. Liniak of Liniak, Berenato, Longacre & White, LLC
for H. Luke McDermott.
Craig D. Taylor, Managing Attorney, Law Office 111.
_______
Before Walters, Wendel and Bucher, Administrative Trademark
Judges.
Opinion by Wendel, Administrative Trademark Judge:
H. Luke McDermott has filed an application to register
the mark LEFTY for “card games.”1
Registration has been finally refused on the ground
that the mark is merely descriptive under Section 2(e)(1)
of the Trademark Act. The refusal has been appealed and

1 Serial No. 75/358,638, filed September 17, 1997, claiming a
first use date and a first use in commerce date of February 1996.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/358,638
2
applicant and the Examining Attorney have filed briefs.
Both participated in an oral hearing.
The Examining Attorney maintains that the term LEFTY
merely describes both the class of intended purchasers and
the subject matter of applicant’s card games. As evidence
thereof, the Examining Attorney relies upon a dictionary
definition of “lefty” as a “left-handed person,”
promotional statements on the specimens, which appear to be
packaging for the goods, referring to applicant’s game as
“an exciting card game designed for left handed play” and
“a card game for lefties...but everyone can play” and
statements on the instruction sheet (made of record by
applicant) that “LEFTY is a card game designed with the
left-hander in mind, but is just as fun for the right-
handers as well,” and that one should “be a LEFTY player
and remember Lefties do it right!” He cites In re Camel
Manufacturing Co. Inc., 222 USPQ 1031 (TTAB 1984) as
support for his position that the mark is merely
descriptive in that LEFTY describes an appreciable number
of the type of individuals to whom applicant’s goods are
directed, or, in other words, that left-handers comprise
the bulk of the intended class of purchasers.
Applicant argues that the goods as identified are not
limited to card games for left-handed players only and in
Ser No. 75/358,638
3
fact the game associated with the specimens can be enjoyed
equally by both right-handed and left-handed players.
Applicant argues that the cards in its game have no
physical characteristics that favor left-handed players;
that the term “Lefty” refers to the name of a trump card in
the game; that although the cards are printed to favor a
reverse fan, this fan is not any easier for left-handers
than right-handers; and that while slogans and statements
on the packaging refer to left-handed play, it is clear
that the game is also intended for right-handers. Thus,
applicant argues that the term LEFTY does not merely
describe the nature of the product or the intended class of
purchasers.
Applicant further insists that it would be “commercial
suicide” to focus only on left-handed players; that it is
highly unlikely that all of those playing the game would be
left-handed; and that there is no evidence to support any
intention of applicant to sell the goods only to left-
handers. Applicant insists that the Examining Attorney’s
reliance upon the Camel Manufacturing case is misplaced,
since applicant’s goods are not directed toward only one
class of purchasers, namely, left-handed players. Instead,
applicant claims that, just as in Levi Strauss & Co. v.
H.D. Lee Co., 130 USPQ 46 (TTAB 1961), wherein the mark LEE
Ser No. 75/358,638
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WESTERNERS was found not to be merely descriptive since
purchasers would not assume that the clothing involved was
directed toward “westerners” as a class of purchasers,
LEFTY is not merely descriptive since purchasers would not
reasonably assume that applicant’s card game is directed
only to left-handed players.
A term or phrase is merely descriptive within the
meaning of Section 2(e)(1) if it immediately conveys
information about a characteristic or feature of the goods
with which it is being used. Whether or not a particular
term is merely descriptive is not determined in the
abstract, but rather in relation to the goods for which
registration is sought, the context in which the mark is
being used, and the significance the mark is likely to
have, because of the manner in which it is used, to the
average purchasers as he encounters the goods bearing the
mark. See In re Abcor Development Corp., 588 F.2d 811, 200
USPQ 215 (CCPA 1978).
Here applicant’s card game totally revolves around the
concept of left-handedness. Not only is the game touted as
being “designed for left handed play,” but the cards are
printed to favor a reverse fan of the cards and the rules
suggest left-handed play. The entire theme of applicant’s
card game is to emphasize or glorify left-handedness. The
Ser No. 75/358,638
5
“Lefty” cards provide a strategic advantage under the rules
of the game; and the players are admonished to remember
that it is the “Lefties [who] do it right.” While right-
handers obviously may play the game, the focus is on the
left-handed player. With such a theme and mode of play, we
fail to see how the term LEFTY can be viewed by purchasers
as other than a direct reference to the subject matter of
the card game, and thus it is merely descriptive thereof.
We also agree with the Examining Attorney that the
term LEFTY is merely descriptive in that it describes an
appreciable number of the type of individuals to whom the
goods are directed. Although the identification of goods
is not limited to left-handed purchasers or players, the
game is touted as a “card game for lefties,” even though
“everyone can play.” The attraction is obviously going to
be greater for left-handed persons, or perhaps for right-
handed persons purchasing the game for left-handed friends
or family members.
We find the holding in the Camel Manufacturing case,
that a mark is merely descriptive if an appreciable number
of the party’s goods are directed to the type of
individuals described by the mark, to be applicable here.
We are convinced that at least an appreciable number of
applicant’s games would be purchased by left-handed
Ser No. 75/358,638
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persons, or as otherwise worded by the Examining Attorney,
that an appreciable number of the purchasers of applicant’s
games would be left-handed.
Applicant argues that the general principle followed
in Camel Manufacturing is not controlling here, but rather
the circumstances more nearly parallel those in the Levi
Strauss case. We disagree. There, the Board held the term
WESTERNER not merely descriptive as used in the mark LEE
WESTERNER for pants and jackets. The Board determined that
purchasers would not assume, because of the inclusion of
the term WESTERNER, that the clothes were intended for use
only by Westerners, pointing to the fact that the so-called
“western wear” of both parties was sold throughout the
United States for use by all. Here, by contrast, both the
promotional materials and rules for the card games of
applicant, although capable of being played by all,
emphasize left-handedness. In Camel Manufacturing, the
term MOUNTAIN CAMPER was found to be merely descriptive in
that a large number of the items sold in the applicant’s
catalogs were directed to those who were mountain campers.
The situation is the same here, the term LEFTY is merely
descriptive since applicant’s card games are targeted to,
or have a much greater appeal to, those individuals who are
left-handed.
Ser No. 75/358,638
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Accordingly, we find the term LEFTY merely descriptive
as used in connection with applicant’s card games.
Decision: The refusal to register under Section
2(e)(1) is affirmed.
C. E. Walters
H. R. Wendel
D. E. Bucher
Administrative Trademark Judges,
Trademark Trial and Appeal Board
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