Nortech Investments Ltd.

Trademark Trial and Appeal Board

Jul 12, 2013

No. 85081203 (T.T.A.B. Jul. 12, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: July 12, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Nortech Investments Ltd.
_____

Serial Nos. 85081203 and 85081475
_____

Steven A. Gibson of Dickinson Wright PLLC,
for Nortech Investments Ltd.
Linda Lavache, Trademark Examining Attorney, Law Office 106,
Mary I. Sparrow, Managing Attorney.
_____

Before Bucher, Holtzman and Wolfson,
Administrative Trademark Judges.

Opinion by Bucher, Administrative Trademark Judge:
Nortech Investments Ltd. (“applicant”) seeks registrations on the Principal Register,
both having claims of acquired distinctiveness under Trademark Act Section 2(f), 15
U.S.C. § 1052(f), for the designations SPORTSBET.COM and SPORTSBET (both in
standard character formats) for services recited in the respective applications as
“computer services, namely providing database featuring sports news,” in International
Class 41.1

1 Application Serial Nos. 85081203 and 85081475 were both filed on July 9, 2010, based upon
applicant’s claims of use anywhere and use in commerce of each of these marks since at least as
early as January 20, 2000. The original applications each also claimed acquired distinctiveness
for the respective marks in their entireties under Trademark Act § 2(f).
Serial Nos. 85081203 and 85081475
2

Applicant claims ownership of the following two registrations:
SPORTSBET for “computer services, namely providing database featuring sports news” in International Class 41;2 and

for “computer services, namely providing database featuring
sports news” in International Class 41.3

These cases are now before the Board on appeal from the final refusals of the
examining attorney to register these designations, under Trademark Act Section 2(e)(1),
15 U.S.C. § 1052(e)(1), based upon the ground that the proposed marks are generic for
the recited services. In the alternative, the examining attorney contends that in the
event these terms should be found not to be generic for the recited services, they are
highly descriptive of the services, and applicant has failed to provide sufficient
evidence to demonstrate that the marks have acquired distinctiveness under Trademark
Act Section 2(f).
Following final refusals by another examining attorney, applicant filed requests for
reconsideration of the statutory refusal in conjunction with its notices of appeal. The
currently assigned examining attorney denied the requests for reconsideration.
Inasmuch as the original briefs included new evidence in support of applicant’s
statutory arguments and initial claims of acquired distinctiveness, we permitted
applicant to file requests for remand in order to properly make this new evidence of
record. The applications were each remanded to the examining attorney for
consideration of the additional evidence, who issued final Office actions in each case

2 Registration No. 2416677 issued on the Supplemental Register on December 26, 2000;
renewed.
3 Registration No. 2875874 issued on the Principal Register on August 24, 2004; Section 8
affidavit accepted and Section 15 affidavit acknowledged. No claim is made to the exclusive
right to use the designation “SPORTSBET.COM” apart from the mark as shown.
Serial Nos. 85081203 and 85081475
3

maintaining the refusals under Section 2(e)(1). Applicant filed supplements to its
earlier filed appeal briefs.
Because the issues in these appeals are substantially the same, we have
consolidated the appeals by issuing a single opinion, taking into consideration the
differences in the marks as appropriate. We affirm both refusals to register.
Issues on Appeal

The issues on appeal are (1) whether the designations SPORTSBET.COM and
SPORTSBET are generic for applicant’s services; and, alternatively (2) if such terms
should be found to be not generic, whether they have acquired distinctiveness.
Positions of applicant and the examining attorney

Applicant argues that the Office has failed to meet the burden of proving by clear
evidence that these designations are generic for the “Claimed Services” of “sports news,”
distinguishing the recited services from what applicant labels the “Straw Services”
involving “sports wagering.” Adopting the label “Mark-Relevant Public,” applicant
argues that members of this relevant group of prospective users of these services clearly
would not understand the phrases “SportsBet.Com” or “SportsBet” to pertain to the
provision of a database featuring sports news. Applicant argues that even if
“SportsBet.Com” or “SportsBet” were to be deemed to be generic for a wager on a sports
event, the mere fact that its specimens of record include content that discusses
wagering on a sports event (in addition to information about sports news) does not in
any way cause applicant’s use of these applied-for-marks to be generic for the Claimed
Services (as defined by applicant). Furthermore, applicant argues that its prior
Serial Nos. 85081203 and 85081475
4

registration (especially the registration on the Supplemental Register of SPORTSBET as
applied to the ‘475 appeal) demonstrates the Office’s past recognition of the “non-
genericness of the mark,” and that the examining attorney has not pointed to any
change of circumstances leading to genericness now with respect to the Claimed
Services. Accordingly, applicant contends that the examining attorney has failed to
meet the burden placed on her to prove the genericness of the designations inasmuch as
the Claimed Services do not constitute, include, relate to, or even mention betting in
relation to a sports event.
In the alternative, as to the sufficiency of its showings of acquired distinctiveness
pursuant to Trademark Act § 2(f), applicant again points to its registration on the
Supplemental Register for more than ten years as support for concluding that these
marks have achieved recognition as source identifiers. Applicant argues that its
presumptions have not been rebutted by the examining attorney; that four hundred
thousand (400,000) unique visitors annually to its website is sufficient to support a
conclusion of acquired distinctiveness; and that permitting these marks to publish for
opposition and to register under Trademark Act § 2(f) would be consistent with past
Office practice as reflected in its own and third-party registrations cited herein.
By contrast, the examining attorney contends that the genus of the applicant’s
involved services encompasses the provision of a database featuring news about sports
bets inasmuch as “sports news” is a larger set, which includes the smaller set of “news
about sports bets via a database.” In addition to the individual dictionary definitions of
“Sports” and “bet,” the combined term “sports bet” (or “sportsbet”) is shown via Internet
evidence to refer to “subject matter pertaining to wagers on sports.” Therefore, the
Serial Nos. 85081203 and 85081475
5

relevant public (which includes the general public interested in sports and/or betting),
would understand the applied-for marks to refer to the provision of an online database
about sports bets.
In fact, the examining attorney points out that applicant’s specimens of use and
other evidence shows that sports bets are, in fact, the main focus of the sports news
on applicant’s website (i.e., the term “SPORTSBET” in the mark identifies the central
focus of the information services provided on applicant’s website). Logically,
according to the examining attorney, the fact that applicant has chosen to identify
the subject matter of the news it provides using the broader term “sports” does not
mean that the services do not encompass the provision of news about “sports bets.”
As to applicant’s prior Supplemental Register registration, the examining
attorney maintains that such a registration is not prima facie evidence of anything
except that the registration issued; and that the Board is not bound by prior decisions
of examining attorneys involving different records.
In the alternative, the examining attorney argues that even if these marks should
be found not to be generic, the marks are both highly descriptive of applicant’s services;
and that the term “SportsBet” has been registered on the Supplemental Register for ten
years does not demonstrate acquired distinctiveness; that the Google printouts, to the
extent they have any relevance to this determination, repeatedly show third-party usage
of “sports bet” (or “sportsbet”) in connection with similar services in a generic manner;
and the fact that applicant’s website is the first one returned in a Google search of the
term SportsBet” is meaningless, and the history of a relatively high volume of visits to
Serial Nos. 85081203 and 85081475
6

applicant’s website tells the Board nothing about the perceptions of these users of the
designations SPORTSBET.COM or SPORTSBET.
Genericness

A term is generic and not a mark if it refers to the class, genus or category of goods
and/or services on or in connection with which it is used. See In re Dial-A-Mattress
Operating Corp., 240 F.3d 1341, 57 USPQ2d 1807(Fed. Cir. 2001), citing H. Marvin
Ginn Corp. v. International Association of Fire Chiefs, Inc., 782 F.2d987, 228 USPQ 528
(Fed. Cir. 1986). The test for determining whether a mark is generic is its primary
significance to the relevant public. See Section 14(3) of the Act. See also In re American
Fertility Society, 188 F.3d 1341, 51 USPQ2d 1832 (Fed. Cir. 1999); Magic Wand Inc. v.
RDB Inc., 940 F.2d 638, 19 USPQ2d 1551 (Fed. Cir. 1991); and H. Marvin Ginn Corp.,
228 USPQ at 530. The examining attorney has the burden of establishing by clear
evidence that a mark is generic and thus unregistrable. See In re Merrill Lynch, Pierce,
Fenner and Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141 (Fed. Cir. 1987). Evidence of
the relevant public’s understanding of a term may be obtained from any competent
source, including testimony, surveys, dictionaries, trade journals, newspapers and other
publications. See In re Northland Aluminum Products, Inc., 777 F.2d 1556, 227 USPQ
961 (Fed. Cir. 1985).
In support of the refusal to register, the examining attorney has introduced into the
record the following dictionary definitions of “sport(s),” “news,” “bet,” and “.com”:
3sport adjective
Definition of SPORT
Serial Nos. 85081203 and 85081475
7

: of, relating to, or suitable for sports; especially : styled in a manner suitable
for casual or informal wear 4

sport ADJECTIVE:
or sports
1. Of, relating to, or appropriate for sports: sport fishing; sports
equipment. 5

sports adjective
Definition
relating to sport: 6

news pl. noun
(used with a sing. verb)
1 a: Information about recent events or happenings, especially
as reported by newspapers, periodicals, radio, or television. 7

1bet noun
1 a : something that is laid, staked, or pledged typically between two parties on the
outcome of a contest or a contingent issue : wager —often used figuratively in such
phrases as all bets are off to stress the uncertainty of an outcome
b : the act of giving such a pledge
2 : something to wager on 8

bet NOUN:
1. An agreement usually between two parties that the one who has made
an incorrect prediction about an uncertain outcome will forfeit something
stipulated to the other; a wager. 9

.com
Definition
abbreviation for company: used in some internet addresses which belong to
companies or businesses: 10

4 MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY, http://www.merriam-
webster.com/dictionary/sport.
5 AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE,
http://education.yahoo.com/reference/dictionary/entry/sport.
6 CAMBRIDGE ADVANCED LEARNERS DICTIONARY & THESAURUS,
http://dictionary.cambridge.org/dictionary/
7 AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE,
http://education.yahoo.com/reference/dictionary/entry/news.
8 MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY, http://www.merriam-
webster.com/dictionary/bet.
9 AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE,
http://education.yahoo.com/reference/dictionary/entry/bet.
10 CAMBRIDGE ADVANCED LEARNERS DICTIONARY & THESAURUS,
http://dictionary.cambridge.org/dictionary/
Serial Nos. 85081203 and 85081475
8

.com
Cultural Dictionary
.com (dot-com)
Part of the Internet address of many companies and organizations. It
indicates that the site is commercial, as opposed to educational or
governmental.
Note : The phrase dot-com is used to refer generically to
almost anything connected to business on the Internet. 11

The determination of whether a term is generic involves a two-part inquiry:
First, what is the category or class of the goods or services at issue?

Second, is the term sought to be registered understood by the
relevant public primarily to refer to that category of goods or
services?

See H. Marvin Ginn Corp., 228 USPQ at 530.
With respect to the first part of the genericness inquiry, we focus first on applicant’s
recitations of services in the involved applications, namely, “computer services, namely
providing database featuring sports news.” Magic Wand Inc. v. RDB Inc., 940 F.2d 638,
19USPQ2d 1551, 1552 (Fed. Cir. 1991) (“[A] proper genericness inquiry focuses on the
description of services set forth in the [application or] certificate of registration”).
We also note that a screenshot from applicant’s Internet website, submitted with its
original applications as a specimen of record, clearly indicates that the main focus of
the sports news on applicant’s dot-com website is providing information, inter alia,
about sports bets. The screenshot is reproduced below, to which we have added
highlights to accentuate relevant portions:

11 THE AMERICAN HERITAGE NEW DICTIONARY OF CULTURAL LITERACY, 3d Ed. 2005,
http://dictionary.reference.com/browse/.com?s=t&path=/
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Serial Nos. 85081203 and 85081475
10

not generic terms for the category or class of its services. Applicant’s contentions
notwithstanding, the record demonstrates that www.sportsbet.com is a single website
offering a variety of interrelated, interactive and largely undifferentiated services.
Precedent from our primary reviewing Court confirms that it is appropriate to take all
of those services into consideration when defining the genus of services. It is clear from
its specimen of use that the sports news featured on applicant’s computerized database
includes information on sports betting. Counsel should recognize that the facts in this
case are most analogous to those of In re DNI Holdings Ltd., 77 USPQ2d 1435 (TTAB
2005). In that case, involving the designation SPORTSBETTING.COM, we found that
despite applicant’s decision to carve “sports wagering” out of its recitation of services,
“the relevant genus of services herein includes wagering on sporting events.” Id. at
1439. See also In re Steelbuildings.com, 415 F.3d 1293, 75 USPQ2d 1420, 1422 (Fed.
Cir. 2005). We further observed:
Even if we are constrained to ignore the realities of use actually made by
applicant because applicant has purposely drafted a description omitting
that use, this does not end the first part of the Marvin Ginn inquiry into
possible genericness. Applicant’s recitation of services includes the
providing of a website “featuring information in the fields of gaming,
athletic competition and entertainment.” That is, even if for purposes of
this inquiry, we were to ignore applicant’s clear offering on its website of
“sports betting services,” we nonetheless find that the class or category of
services described in the application still clearly includes that of providing
information regarding sports and betting. See In reCyberFinancial.Net
Inc., 65 USPQ2d 1789 (TTAB2002) [BONDS.COM generic for identified
information services related to investment securities even where applicant
does not buy or sell bonds].

DNI Holdings Ltd., 77 USPQ2d at 1438. Similarly, in the case before us, even if we
ignore applicant’s own specimen of use indicating that it provides a wealth of
information on sports betting in the form of a dictionary, historical reviews, blogs and
Serial Nos. 85081203 and 85081475
11

listings of live odds, we would find that the broadly-worded services recited in the
involved applications clearly include providing just such information.12 See In re
Oppendahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370 (Fed. Cir. 2004); and In re
Reed Elsevier Properties Inc., 77 USPQ2d 1649 (TTAB 2005). Therefore, the genus at
issue herein is the service of “providing a computer database featuring sports news,”
which service is broad enough to include “providing information to assist users in
placing sports bets.”
We turn next to the second step of the Marvin Ginn inquiry, namely, whether the
relevant public understands the terms SPORTSBET.COM and SPORTSBET primarily to
refer to that category of services. We find that these terms are so understood.
There appears to be no dispute but that the relevant public for applicant’s services
consists of all typical customers of such services, including those who would be
interested in wagering on a wide variety of sports (e.g., auto racing, baseball,
basketball, boxing, football, golf, hockey, soccer and tennis), and hence, who would wish
to become more knowledgeable about the sports on which they are betting.
As noted above, the evidence of record establishes that the “sports bet” is the focus,
or a key focus, of applicant’s online computer database services. Because the term
“sports bet” names a key aspect of applicant’s services, i.e., a central purpose of
applicant’s computer database services, the term is generic for such services.

12 Because “sports bet” has been shown to be used as a generic unitary term of art in the
relevant field, we actually need not consider the generic significance of the words “sports” and
“bet” alone. See In re Shiva Corp., 48 USPQ2d 1957 (TTAB 1998). For the same reason, it is
unnecessary for us to engage in a determination of whether SPORTSBET.COM, which
combines a generic term with the top level domain (.tld) indicator “.COM,” is a compound word
or phrase for purposes of analyzing the examining attorney’s burden of proof. See In re Gould
Paper Corp., 834 F.2d 1017, 5 USPQ2d 1110, 1111-12 (Fed. Cir. 1987); and In re American
Fertility Society, 188 F.3d 1341, 51 USPQ2d 1832, 1837 (Fed. Cir. 1999).
Serial Nos. 85081203 and 85081475
12

Additionally, the term SPORTSBET.COM is no more registrable than the generic
term “sports bet” (or “sportsbet”) alone. We have seen from several dictionary entries
placed into the record by the examining attorney that “.com” (an abbreviation for
“commercial”) is the most popular generic Top-Level-Domain used in Internet addresses
belonging to companies or businesses. The term “.com,” in itself, has no source-
identifying significance. See In re Hotels.com, L.P., 87 USPQ2d 1100 (TTAB 2008).
Rather, it serves only to signify that the user of the domain name is a commercial
entity, and that the goods or services offered by the entity involve use of the Internet.
Id. See also In re Oppendahl & Larson LLP, 71 USPQ2d at 1374. “While there is no
bright-line rule that appending a top-level domain name such as ‘.com’ to an otherwise
generic term will never affect registrability (see Oppendahl, supra), in this case it does
not.” In re Hotels.com, 87 USPQ2d at 1114. The terms “sports bet” and “.com” both have
clear and readily understood meanings, and the combined terms communicate just as
clearly and directly that applicant operates a commercial Internet database service that
enables users to obtain information helpful in wagering on a variety of sports.
We are not persuaded by applicant’s argument that because of several third-party
registrations it placed into the record, having marks arguably analogous to the two
designations involved herein, the marks should be published for opposition.
As to the allegedly analogous GREYHOUNDRACING.COM mark, this third-party mark
may be highly descriptive if not generic, but based on that record, it was registered with
a claim of acquired distinctiveness. Even if perhaps another examining attorney might
have found the § 2(f) evidence insufficient, this Board and our primary reviewing Court
have frequently noted that each case must be decided on its own merits. See, e.g., In re
Serial Nos. 85081203 and 85081475
13

Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001). See also In re
Kent-Gamebore Corp., 59 USPQ2d 1373 (TTAB2001); and In re Wilson, 57 USPQ2d
1863 (TTAB 2001). Moreover, even if this mark is perfectly analogous, it is illogical to
suggest, as applicant does, that every one of four-hundred examining attorneys must be
factually accurate and legally consistent with each other 100% of the time in order for
this Board to find the terms SPORTSBET.COM and SPORTSBET generic in these
appeals.
The examining attorney also pointed out factually ways in which some other third-
party marks highlighted by applicant did not involve analogous issues. For example,
the mark in Reg. No. 3930787 [ for pet products] includes a
prominent design feature, and “PetSource” (unlike “SportsBet” applied to the affected
services) does not even appear to be merely descriptive of pet products.
GOBOATING.COM, the mark in Registration No. 3928084, pairs the suggestive term
“Go” with generic wording “Boating.com.” In short, as noted by the examining attorney,
inasmuch as these marks have substantially nothing in common with applicant’s
SPORTSBET.COM and SPORTSBET mark, those marks have no relevance to the
genericness inquiry herein.
Applicant also cites to the “Harley ‘Hog’ Case” in the Seventh Circuit Court of
Appeals. Indeed, it is black letter trademark law that “[a] company’s name may be
generic as to one of its products, but not generic as to its other products, even those
related to the first product.” H-D Michigan, Inc. v. Top Quality Service, Inc., 496 F.3d
755, 760 (7th Cir. 2007). In this case, the Court majority found that while the word
“hog” may be generic as applied to large motorcycles, “Harley’s use of the word ‘hog’ is
Serial Nos. 85081203 and 85081475
14

not generic as applied to its motorcyclist club.” Id. at 761. However, in each genericness
case, a tribunal is faced with a very specific question of fact. Some purported analogies
to previously-reported cases are more tenuous than others. In the case at bar, we find
that “sports news” is not to “news about sports bets” as “motorcycles” are to “clubs of
motorcyclists.”13
Similarly, the existence of applicant’s prior Registration No. 2416677 for
SPORTSBET on the Supplemental Register for services identical to those recited herein
does not compel a determination that the designation is registrable herein. As noted by
the examining attorney, applicant’s prior Supplemental Registration is not prima facie
evidence of anything except that the registration issued. And of course, each application
must be judged on its own merits based upon the evidence of record, and we are not
bound by the past decisions of individual examining attorneys in considering different
applications. The Board must make its own findings of fact, and that duty may not be
delegated by adopting the conclusions reached on some past occasion by a single
examining attorney. See In re Sunmarks, Inc., 32 USPQ2d 1470, 1472 (TTAB 1994); and
In re BankAmerica Corp., 231 USPQ 873, 876 (TTAB 1986).
In addition to dictionary definitions and evidence from applicant’s websites,14 the
record contains screen-prints from a variety of third-party websites (i.e., applicant’s
competitors), portions of which are reproduced below:

13 The Seventh Circuit (2007) held that the acronym for Harley Owners Group (H.O.G.) is
preserved as a service mark for Harley-Davidson’s official riding club. By contrast, according to
the Second Circuit (1999), the term “hogs” had been used generically to refer to large
motorcycles for years before H-D began claiming trademark rights in this term for its bikes.
14 In addition to www.sportsbet.com, it also appears that applicant has used the same term with
a hyphen between the words “sports” and “bet” in the domain name for another of its websites,
namely, www.sports-bet.com. See Office action of April 28, 2012, at 70 of 93.
Serial Nos. 85081203 and 85081475
15

Serial Nos. 85081203 and 85081475
16

In fact, on yet another website placed into the record, the examining attorney
highlighted more than a dozen uses of the term “sports bet” on a single page of that
website. See www.DrDremo.com.
These marketplace uses support the conclusion that consumers who are interested
in wagering on sports would immediately understand that SPORTSBET and
SPORTSBET.COM identify an Internet database that provides information related to
such activities. This evidence demonstrates a competitive need for others to use as a
part of their own domain names,15 trademarks and service marks, the very terms that
applicant is attempting to register. Thus, the designations sought to be registered
should not be subject to exclusive appropriation, but rather should remain free for
others in the industry to use in connection with computer services inextricably tied into
their sports betting services. See In re Boston Beer Co. L.P., 198 F.3d 1370, 53 USPQ2d
1056 (Fed. Cir. 1999).
Therefore, we conclude that the examining attorney has met the substantial burden
of establishing that the designations are generic in both applications, and hence, that
SPORTSBET and SPORTSBET.COM are incapable of identifying and distinguishing the
source of the recited services.
Acquired Distinctiveness

As noted above, by seeking registration pursuant to Section 2(f), applicant has
conceded the mere descriptiveness of the designation sought to be registered. See

15 These domain names include the following: http://casino-sportsbet.com, www.the-sportsbet-
club.com, www.sportsbetlistings.com, www.freesportsbet.com, www.afsportsbets.com,
www.online-sportsbet.com, www.sportsbet.net. See Office action of April 28, 2012, Attachments
3 and 4.
Serial Nos. 85081203 and 85081475
17

Yamaha International Corp. v. Hoshino Gakki Co., Ltd., 840 F.2d 1572, 6 USPQ2d
1001, 1005 (Fed. Cir. 1988); and In re Leatherman Tool Group, Inc., 32 USPQ2d 1443,
1444 (TTAB 1994). In addition, and as discussed in our genericness determination,
supra, the record at a minimum establishes that SPORTSBET and SPORTSBET.COM
are highly descriptive of the recited services.
In finding above that the designations SPORTSBET and SPORTSBET.COM are
incapable of serving as source identifiers for applicant’s services, we have considered, of
course, all of the evidence touching on the public perception of this designation,
including the evidence of acquired distinctiveness. As to acquired distinctiveness,
applicant has the burden of establishing a prima facie case of acquired distinctiveness.
Yamaha Int’l Corp., 6 USPQ2d at 1006.
Applicant submitted the declaration under Trademark Rule 2.20 of Gerencio P.
Masula, its vice-president, stating that during the twelve months between March 2011
and March 2012, applicant’s website http://www.sportsbet.com received approximately
four hundred thousand unique visitors; and that these numbers are representative of
its annual visitors and page views since January 2000.
Applicant’s length of use and number of visitors to its Internet website suggest that
applicant’s website has enjoyed a relatively high level of online traffic. Nonetheless, this
evidence demonstrates only the relative popularity of applicant’s website, not that the
relevant customers of the services available thereby have come to view the designations
SPORTSBET and SPORTSBET.COM as applicant’s source-identifying service marks. See
In re Bongrain International Corp., 894 F.2d 1316, 13 USPQ2d 1727 (Fed. Cir. 1990);
and In re Recorded Books Inc., 42 USPQ2d 1275 (TTAB 1997). The issue here is the
Serial Nos. 85081203 and 85081475
18

acquisition of distinctiveness, and the evidence falls short of establishing this. Notably,
the record is completely devoid of evidence that the relevant classes of purchasers of
applicant’s computer services recognize SPORTSBET and SPORTSBET.COM as
distinctive source indicators for such services.16
We further observe that while ownership of a prior registration on the Principal
Register may constitute evidence of acquired distinctiveness, neither of the
registrations claimed by applicant herein serves to buttress applicant’s claim under
Section 2(f). First, the mark in applicant’s prior registration on the Principal Register
involves a special form drawing, where the
designation “SPORTSBET.COM” is disclaimed.
Hence this registration cannot be accepted herein as prima facie evidence of acquired
distinctiveness of the term SPORTSBET.COM. Kellogg Co. v. Gen. Mills, Inc.,
82 USPQ2d 1766, 1771 n.5 (TTAB 2007); and In re Candy Bouquet Int’l, Inc.,
73 USPQ2d 1883, 1889-90 (TTAB 2004).
Similarly, applicant’s ownership of a registration on the Supplemental Register for
the mark SPORTSBET does not serve to buttress applicant’s claims of acquired
distinctiveness under Section 2(f). See In re Canron, Inc., 219 USPQ 820, 822 n.2 (TTAB
1983).

16 We are not implying that an applicant must submit affidavits or declarations asserting
recognition of the subject matter sought to be registered as a mark, or that applicant must
submit survey evidence, or that any other specific type of evidence is required to prove that a
term has acquired distinctiveness. Nonetheless, we require evidence clearly demonstrating the
effectiveness of applicant’s use of its designations to cause the purchasing public to identify the
subject matter sought to be registered with the source of the product. Such evidence is not
present in this case.
Serial Nos. 85081203 and 85081475
19

Accordingly, even if the designations SPORTSBET and SPORTSBET.COM were both
found to be not generic, but merely descriptive, given the highly descriptive nature of
these designations, we would need to see a great deal more evidence (especially in the
form of direct evidence from customers) than what applicant has submitted in order to
find that the designation has become distinctive of applicant’s services. That is to say,
the greater the degree of descriptiveness, the greater the evidentiary burden on the
user to establish acquired distinctiveness. See Yamaha Int'l. Corp., 6 USPQ2d at1006;
and Merrill Lynch., 4 USPQ2d at 1144. Highly descriptive terms, for example, are less
likely to be perceived as trademarks and are more likely to be useful to competing
sellers than are less descriptive terms. More substantial evidence of acquired
distinctiveness thus will ordinarily be required to establish their distinctiveness.17
Decision: The refusals to register applicant’s marks SPORTSBET and
SPORTSBET.COM under Section 2(e)(1) of the Act on the ground that the proposed
marks are generic are both affirmed. In the alternative, in the event the proposed
marks should be found to be not generic, the refusals under Section 2(e)(1) of the Act on
the ground that the marks are descriptive and the Section 2(f) showings are
insufficient, are also affirmed.

17 In its briefs, applicant requests remand of the involved application to submit additional
evidence of acquired distinctiveness if we should deem the current showing to be insufficient.
The examining attorney notes that these requests are untimely, and that granting such requests
would amount to further “bites at the apple” to which applicant is not entitled. We agree.
Throughout the prosecution of these applications, several examining attorneys have discussed
applicant’s evidence of acquired distinctiveness. Thus, applicant was afforded multiple
opportunities to submit additional evidence. However, to the extent that applicant had
additional evidence but did not submit it during prosecution of its application, applicant will not
now be granted another opportunity to do so. See Trademark Rule 2.142(g). Accordingly,
applicant’s request for remand is denied.