Petroglyph Games, Inc.

Trademark Trial and Appeal Board

Jun 19, 2009

No. 78806413 (T.T.A.B. Jun. 19, 2009)

Mailed:
June 19, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Petroglyph Games, Inc.
________

Serial No. 78806413
_______

Steven A. Gibson and Jodi Donetta Lowry of Gibson Lowry
Burriss LLP for Petroglyph Games, Inc.

Khanh M. Le, Trademark Examining Attorney, Law Office 113
(Odette Bonnet, Managing Attorney).
_______

Before Hairston, Rogers and Wellington, Administrative
Trademark Judges.

Opinion by Rogers, Administrative Trademark Judge:

Petroglyph Games, Inc. (applicant) applied to register
BATTLECAM, in standard character form, on the Principal
Register as a mark for “computer game software.” The mark
in this intent to use application was approved for
publication without issuance of an Office action. After
applicant received a notice of allowance, it filed a
statement of use. The application now lists February 16,
2007 as the date of first use of the mark and first use of
the mark in commerce.
This Opinion Is a Precedent
of the TTAB
Ser No. 78806413
2
The examining attorney has made final a refusal of
registration under Section 2(e)(1) of the Trademark Act, 15
U.S.C. § 1052(e)(1), on the basis that the proposed mark is
merely descriptive of a feature of applicant’s goods. In
addition, the examining attorney has made final a
requirement for amendment of the identification of goods
because the specimen of use is said to show that BATTLECAM
is used by applicant to refer to a feature of its software,
rather than as the name of its computer game. The specimen
appears below.

Ser No. 78806413
3
Before discussing the issues on appeal we must address
an evidentiary issue, specifically, applicant’s submission
of evidence after the filing of its notice of appeal. In
its appeal brief, applicant requested that we take judicial
notice of attached reprints of dictionary definitions for
the word “camera,” retrieved from the website
Dictionary.com. With its reply brief, applicant submitted
numerous exhibits, including the results from various
searches of the Internet for evidence to rebut prior
submissions from the examining attorney. Applicant
requests that the attachments to its reply brief be
considered because they “are an elaboration of the Exhibits
presented by the Examining Attorney during the Mark’s
prosecution.” Reply brief, p. 13. Applicant contends that
its evidence should be considered because it did not have
an opportunity to respond to the exhibits attached to the
examining attorney’s Office action finally refusing
registration. Id. In addition, applicant contends many of
its submissions are from the “same or similar sources used
by the Examining Attorney.” Id. In the alternative,
applicant contends that the Board should consider
suspending the appeal and remanding the application to the
examining attorney for consideration of this new evidence.
Ser No. 78806413
4
We grant applicant’s unopposed request, set forth in
its main brief, that we take judicial notice of the
definitions of “camera.”1 In contrast, we deny applicant’s
request that we consider the manifestly untimely
submissions included with its reply brief. See Trademark
Rule 2.142(d), In re Fiesta Palms LLC, 85 USPQ2d 1360 (TTAB
2007) (“Applicant relies for support for this example on an
entry in an online encyclopedia, which it submitted with
its reply brief. The submission is untimely and therefore
is not properly of record. 37 CFR §2.142(d).”), and In re
Zanova Inc., 59 USPQ2d 1300, 1302 (TTAB 2001) (“By
attempting to introduce evidence with its reply brief,
applicant has effectively shielded this material from
review and response by the Examining Attorney.”).
Applicant is incorrect in its statement that it did not
have an opportunity to provide its submissions in response
to the examining attorney’s final Office action. Applicant
could have filed a request for reconsideration with its
notice of appeal, or at any time within six months of the

1 During an appeal, the Board may take judicial notice of
dictionary definitions retrieved from online sources when the
definitions themselves are derived from dictionaries that exist
in printed form. See In re Red Bull GmbH, 78 USPQ2d 1375, 1378
(TTAB 2006). Applicant’s definitions of “camera,” retrieved from
the website Dictionary.com, meet this requirement because they
are from The Random House Unabridged Dictionary. See also In re
IP Carrier Consulting Group, 84 USPQ2d 1028, 1030 n.4 (TTAB
2007).
Ser No. 78806413
5
date of issuance of the final refusal of registration. See
TBMP Section 1204 (2d ed. Rev. 2004). In addition, even
after the time for requesting reconsideration had passed,
applicant could have, in lieu of filing its brief, filed a
request to suspend the appeal and remand the application
file for consideration of new evidence. See TBMP Section
1207.02. It is of no significance that the types of
evidence applicant submitted may be considered related to,
or from “the same or similar sources” as, the evidence
previously submitted by the examining attorney.2 That only
illustrates why it would not have been difficult for
applicant to gather this evidence at an earlier time and
submit it with a request for reconsideration or remand.
Finally, we deny applicant’s alternative request for
remand, for failure to show good cause for a remand so late
in the appeal. In re Zanova Inc., supra, 59 USPQ2d at
1302.
The Identification Requirement
We consider first the examining attorney’s requirement
for applicant to provide an amended identification, because

2 This is not an instance where applicant is attempting to
introduce the entirety of articles for which the examining
attorney had introduced only excerpts, to provide context.
Rather, applicant is attempting to introduce different web pages
than those which the examining attorney introduced, in an attempt
to rebut the examining attorney’s evidence.

Ser No. 78806413
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we believe it helpful to consider this prior to determining
whether the proposed mark is descriptive. Applicant has
argued that it “is not willing to concede descriptiveness
by acceding to the need to claim that the Mark is a feature
of the goods.” Response of February 29, 2008, p. 7
(hereafter, “Response”). Further, applicant argues in its
response and in its appeal briefs that the identification
“computer game software” is specific, definite, would be
clear to the average person and otherwise meets the
Office’s requirements for identifications of goods. We
agree that it meets those requirements. See In re Paper
Doll Promotions, Inc., 84 USPQ2d 1660 (TTAB 2007).
However, the examining attorney has not required a more
specific identification because the given identification
fails to meet Office requirements regarding clarity or
specificity. Rather, the examining attorney contends the
given identification is not accurate and is “at variance
with” what the specimens show the goods to be. Brief, p.
5.
The Office’s requirement that the examining attorney
ensure the accuracy of the identification of goods is
abundantly clear. See TMEP Section 1402.01 (“The
identification of goods or services must be specific,
definite, clear, accurate, and concise”; “The accuracy of
Ser No. 78806413
7
the identification language in the original application is
important because the identification cannot later be
expanded”), and Section 1402.01(e) (“the examining attorney
may require amendment of the identification of goods or
services to ensure that it is clear and accurate”)
(emphasis added). The responsibility that the examining
attorney ensure accuracy of the identification exists
notwithstanding that TMEP Section 1402.03(d) (“Identifying
Computer Programs with Specificity”) notes that “computer
game software” is an acceptable identification, for TMEP
Section 1402.04 explains that “even if the identification
is definite, examining attorneys may inquire as to whether
the identification chosen accurately describes the
applicant’s goods or services.” Finally, see TMEP Section
1402.05, “Accuracy of Identification” and decisions
discussed therein.
In the case at hand, applicant’s Statement of Use
refers to its specimens as a “screen capture of video game
utilizing BATTLECAM feature” (see June 15, 2007 statement
of use) (emphasis added). In particular, as shown by the
specimen reproduced supra, the “screen capture” bears the
game title “STAR WARS EMPIRE AT WAR” and includes, within a
control panel at the bottom of the screen, a small icon
Ser No. 78806413
8
that appears to be a film industry “clapper board,”3 with an
adjacent dialog box that reads “BATTLECAMTM” and has a
pointer that points to the clapper board icon. Any viewer
of the content of this screen would not perceive BATTLECAM
to be the name of the game. STAR WARS EMPIRE AT WAR would
be perceived as the name of the game, and BATTLECAM would
be perceived as the name of a specific feature or aspect of
the STAR WARS game that is accessed or activated by
clicking on the icon to which the BATTLECAM dialog box
points. As the examining attorney stated in the Office’s
appeal brief (at p. 5), “The name of the computer game
software is ‘STAR WARS EMPIRE AT WAR’ as opposed to the
mark ‘BATTLECAM,’” and applicant in its reply brief did not
contest the assertion that STAR WARS EMPIRE AT WAR is the
name of its game.4

3 We take judicial notice that “clapper boards” are defined as “a
pair of boards hinged at one end and banged together in front of
a motion-picture camera before or after a take to facilitate
synchronization of sound and picture prints.” Webster’s Third
New International Dictionary p. 415 (1993). The Board may take
judicial notice of dictionary definitions. University of Notre
Dame du Lac v. J.C. Gourmet Food Imports Co., 213 USPQ 594 (TTAB
1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).

4 Further evidence of the name of applicant’s game is contained
in a web page excerpt attached to the examining attorney’s Office
action of April 1, 2008, which excerpt refers to “Petroglyph,
makers of Star Wars: Empire at War.” The web page corroborates a
fact shown by applicant’s specimen and not denied by applicant,
i.e., that the name of the game from which the specimen is
derived is STAR WARS EMPIRE AT WAR, not BATTLECAM.
Ser No. 78806413
9
While a product may be identified by more than one
trademark, applicant does not specifically argue that
BATTLECAM is a second trademark for its STAR WARS game.
Applicant, however, alludes to that possibility in its
brief (at p. 12), when it asserts “Nothing in TMEP §1402.01
mandates or suggests that only marks constituting the
actual title of software may be described as ‘computer game
software.’” We construe this as a statement that a
producer of computer game software can utilize terms other
than the name or title of a game as a trademark for such a
game, and we acknowledge the possibility. For example,
used in the proper manner, applicant’s corporate name
Petroglyph Games could serve as a mark for its computer
games, even though it would not be the name of any specific
game. Acknowledging, however, the possibility that more
than one mark may be used for a product, begs the question
presented by the examining attorney’s requirement for an
amended identification. That question is whether BATTLECAM
is being used as a mark for “computer game software” or
only for a feature of a computer game, and whether, if the
latter, the present identification is inaccurate.
We conclude that the present identification is not
unacceptable as inaccurate. Even accepting for the sake of
argument that BATTLECAM only identifies for players of
Ser No. 78806413
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applicant’s computer games a feature of such games, the
feature remains, at bottom, computer code that allows the
feature to be activated and used by or controlled by a
player. Based on our consideration overall of applicant’s
discussion of its software and of the examining attorney’s
compiled reviews and discussions of various games, it is
clear that computer game software necessarily must involve
a good deal of computer code to support the video, audio,
and interactive features of such games. Certainly the
entire collection of code used for a particular game can
aptly be referred to as “computer game software”; but we
conclude that subsets of such code that would support only
particular aspects or features of a game can also be
accurately identified by such an identification. See In re
Sun Microsystems Inc., 59 USPQ2d 1084 (TTAB 2001)
(AGENTBEANS refused as descriptive of “computer software
for use in the development and deployment of application
programs on a global computer network” in part based on
evidence that “beans” are building blocks used to create
larger pieces of software).
While there can be no doubt that there is a market for
selling or distributing to computer game players all the
software that allows a game to be played in its entirety,
there may also be a market for computer game software
Ser No. 78806413
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related to only certain game features, perhaps among game
developers or producers who might want to include a
particular feature in a complete game, or perhaps among
players seeking after-market add-ons or enhancements for
existing games. Although it may be more precise to
identify game feature software by the identification
suggested by the examining attorney, “a feature of computer
game software that allows users to ______ (specify
function),” it would not be inaccurate to identify such
software simply as computer game software. The examining
attorney has not established that Office identification
policies require either that “computer game software” only
be used for software that comprises an entire game, or that
the suggested, more specific language is required when
computer game software comprises less than an entire game.
The examining attorney has only argued that the
identification is “inconsistent” or “at variance” with the
specimen, arguments with which we disagree, and has not
argued or explained why the identification should be
considered overbroad. Therefore, we cannot conclude that
the identification is unacceptable on that basis, even if
that was the intended basis of the requirement for a
narrower identification. Moreover, we find the two cases
which the examining attorney cites in support of the
Ser No. 78806413
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requirement to be distinguishable on their facts from the
case at hand.
We therefore reverse the examining attorney’s
requirement that applicant amend its identification of
goods to employ more specific language. On the other hand,
we affirm the refusal to register the proposed mark on the
basis that it will be perceived by prospective consumers as
merely descriptive of applicant’s computer game software,
for reasons detailed below.
The Descriptiveness Refusal
A mark is merely descriptive if it immediately
describes the ingredients, qualities, or characteristics
of the goods or services or if it conveys information
regarding a function, purpose, or use of the goods or
services. In re Abcor Development Corp., 588 F.2d 811,
200 USPQ 215, 217 (CCPA 1978). See also In re MBNA
America Bank N.A., 340 F.3d 1328, 67 USPQ2d 1778, 1780
(Fed. Cir. 2003) (A “mark is merely descriptive if the
ultimate consumers immediately associate it with a quality
or characteristic of the product or service”), and In re
Nett Designs, 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed.
Cir. 2001). To be merely descriptive, a term need only
describe a single significant quality or property of the
goods. In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009
Ser No. 78806413
13
(Fed. Cir. 1987); Meehanite Metal Corp. v. International
Nickel Co., 262 F.2d 806, 120 USPQ 293, 294 (CCPA 1959).
Applicant contends, “The coined word BATTLECAM
contains no references to computers, or games, or
software.” Response, p. 2. See also, Reply brief, p. 8.
Descriptiveness, however, is not analyzed by considering
the mark in the abstract but in conjunction with the
identified goods, for it is settled that “[t]he question is
not whether someone presented with only the mark could
guess what the goods or services are. Rather, the question
is whether someone who knows what the goods and services
are will understand the mark to convey information about
them.” In re Tower Tech Inc., 64 USPQ2d 1314, 1316-17
(TTAB 2002). See also In re Home Builders Association of
Greenville, 18 USPQ2d 1313 (TTAB 1990); and In re American
Greetings Corporation, 226 USPQ 365 (TTAB 1985).
First, we examine the evidence concerning the meanings
that would be ascribed to the term BATTLECAM and the
separate terms BATTLE and CAM,5 when used with applicant’s
goods. Although applicant argues that the examining
attorney’s consideration of the two distinct elements of
the proposed mark constitutes an impermissible dissection

5 Applicant does not argue BATTLECAM would be perceived as a
combination of terms other than BATTLE and CAM.
Ser No. 78806413
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of the mark, Brief, pp. 3 and 5, it is entirely acceptable
to consider the component parts of a composite mark when
divining the likely perception of the composite. See,
e.g., In re Zanova Inc., supra (ITOOL would be perceived as
short for “internet tools” and was refused as descriptive
for goods and services including software for creating Web
pages), In re Polo International Inc., 51 USPQ2d 1061 (TTAB
1999) (DOC-CONTROL refused as merely descriptive of
document management software), and In re Pennzoil Products
Co., 20 USPQ2d 1753 (TTAB 1991) (MULTI-VIS refused as
merely descriptive of multiple viscosity motor oil). See
also, In re King Koil Licensing Co., 79 USPQ2d 1048 (TTAB
2006) (“Nor has the examining attorney engaged in
impermissible dissection of a mark by determining that one
term in the mark is descriptive and another generic. This
is all part and parcel of routine examination of a
multiword mark.”).
Both the examining attorney and applicant have made of
record dictionary definitions for the term “battle,” which
are essentially the same. We therefore defer to the
definitions submitted by applicant. These define “battle”
as meaning “a hostile encounter or engagement between
opposing military forces,” “participation in such hostile
encounters or engagements,” “a fight between two persons or
Ser No. 78806413
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animals,” “any conflict or struggle,” “to engage in
battle,” and “to work very hard or struggle; strive.”6
Response, exhibit 3. Clearly, “battle” is descriptive of
computer games that feature battles as part of the game
play, and it could not reasonably be argued that a game
titled STAR WARS EMPIRE AT WAR would not feature battles or
combat of some type. Indeed, we would have to consider
whether the mark was deceptively misdescriptive if a game
so titled did not include any battles.
Applicant argues that although “computer games may
involve simulations of some form of contest including a
battle of sorts, there is nothing intrinsic or inherent in
computer games having either contests, battles or the
like,” Response, p. 4, and that the scope of its
identification “makes no reference to the type of computer
game software services [sic] provided under the Mark.”
Response, p. 5. See also, applicant’s brief, at p. 8:
“While a subset of computer games involve simulations of
contests, wars, or ‘battles,’ the word battle by no means
describes the entire universe of ‘computer game software.’”
Applicant never actually denies, nor could it, that the
particular computer game illustrated by its specimen does

6 There are others, but these are sufficient to illustrate the
types of definitions of record.
Ser No. 78806413
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feature battles. More importantly, just as a term need not
describe all aspects of a product for it properly to be
refused as descriptive, a term need not describe every type
or variation of a product listed in an identification for
the term to be merely descriptive. It is sufficient that
it merely describe a type of product that is within the
scope of the identification. “Station wagon,” “sedan,”
“coupe,” and “convertible,” for example, each would be a
descriptive term if listed as the subject of an application
whose identification read “automobiles,” even though none
would itself describe all types of automobiles. “[A] mark
may be merely descriptive even if it does not describe the
‘full scope and extent’ of the applicant’s goods or
services.” See In re Oppedahl & Larson LLP, 373 F.3d 1171,
1173, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004) (quoting In re
Dial-A-Mattress Operating Corp., 240 F.3d 1341, 1346, 57
USPQ2d 1807, 1812 (Fed. Cir. 2001)). Thus, even if
applicant uses BATTLECAM in conjunction with computer games
that do not include battles, “battle” remains a descriptive
term for those that do; and applicant’s identification does
not exclude games featuring battles, so we must assume that
the identification includes such games.7

7 As noted above, an identification specifically excluding games
featuring battles would make the mark deceptively misdescriptive.
Ser No. 78806413
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Turning to the CAM portion of the proposed mark,
applicant argues that it is a term most likely to be
perceived as the acronym for “Computer-Aided-Manufacturing”
or as a shortened version of “camshaft” and, if the latter,
likely to have the meaning of “an eccentric or multiply
curved wheel mounted on a rotating shaft, used to produce
variable or reciprocating motion.” See Response, exhibit 2
(results of a web search for “cam definition”). We note,
however, that attached to the same response (exhibit 4) are
the results of applicant’s search for entries for CAM at
Dictionary.com; and these listings begin with “sponsored
links” offering the web searcher links to “Webcams” from
www.Dell.com/SmallBusiness and “Web-cams” from Amazon.com.8
In addition, both applicant and the examining attorney
conducted searches for CAM in the abbreviations and
acronyms database of acronymfinder.com, with both turning
up the same first 15 results. Among these, the first
listing is for “camera” and fourth is for “camcorder (video
source).” Also, included with the final refusal of
registration are the results of the examining attorney’s
search for “cam” in the Merriam-Webster OnLine Dictionary,

8 Since neither sponsored link includes an explanation of what a
webcam is or what it does, it appears clear that the sponsors of
the links believe that “webcam” is a term that will be
immediately understood.

Ser No. 78806413
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which returned six entries, with the second being “Main
Entry: cam Function: noun Date: 1977 : camera;
especially: Video Camera.”
Supplementing the above evidence, we take judicial
notice of the following definitions from various
dictionaries and encyclopedias (bold-face and italics in
original entries):
camcorder (n.) Contraction of camera and
recorder; portable videotaping gear. The usual
formats are VHS and 8 mm, along with their
higher-resolution versions, S-VHS and Hi-8. VHS-
Compact 9VHS-C) is a smaller version of VHS. The
Dictionary of Multimedia Terms & Acronyms p. 45
(1999).

camcorder n. a portable combined video
camera and video recorder – Origin 1980s: blend
of camera and recorder. The New Oxford American
Dictionary p. 247 (2001).

Webcam A videocamera, attached to the
Internet, that uploads images to the Internet
either at intervals or in realtime. Popular
webcam images have shown college dorm rooms or
someone’s driveway. Imagine that! Illustrated
Computer Dictionary for Dummies (4th ed. 2000).

CAM … (4) (CAMera) See also Webcam. WebCam
(WEB CAMera) A video camera that is used to send
periodic images or continuous frames to a Web
site for display. WebCam software typically
captures the images as JPEG or MPEG files and
uploads them to the Web server. There are
countless WebCam sites throughout the Internet
that have cameras pointed at virtually
everything, including people just going about
their daily work. WebCams have become popular on
sexual-oriented sites providing the electronic
rendition of the live “peep show.” Computer
Ser No. 78806413
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Desktop Encyclopedia, p. 109 and p. 1055 (9th ed.
2001).

WebCam (WEB CAMera) A video camera that is
used to send periodic images or continuous frames
to a Web site for display. There are countless
WebCam sites throughout the Internet that have
cameras pointed at virtually anything, including
animals and people doing their daily work. The
images are refreshed every minute or so. Live
video feeds for continuous action may also be
provided. The Computer Glossary p. 439 (9th ed.
2001).

The dictionary entries show that when “cam” is used in
conjunction with another word providing appropriate
context, it will readily be perceived as a shortened form
of “camera.” The question, then, is whether CAM, when it
is employed by applicant as part of BATTLECAM, constitutes
a use that, in context, will be perceived as a shortened
form of “camera” or as a reference to Computer-Aided-
Manufacturing, camshafts, or one of the other subjects
listed in applicant’s search results of the Internet and of
Dictionary.com.
We conclude that CAM will be considered by players of
computer games as a reference to a “camera,” and more
specifically, as a reference to the optional camera-like
view or views of the terrain or scenes in a computer game
that a player may access during play. We rely for our
conclusion on this point both on the dictionary definitions
Ser No. 78806413
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of camcorder and webcam, which show that there is a
practice of using cam as a shortened form for the word
camera, and on the various Internet game reviews and
criticisms from players attached to the examining
attorney’s Office actions of August 29, 2007 and April 1,
2008, which we discuss further below. Applicant argues
that its game software does not include even a “virtual”
camera, and asserts that even if computer game players
would view “cam” as short for “camera,” these would still
be only suggestive terms. The evidence, however, leads us
to a contrary conclusion.
Relying on a definition of a “camera” (see exhibit to
main brief) as a device that records and/or transmits “an
image that exists,” brief, p. 10 (emphasis by applicant),
applicant argues that it is unclear what a camera in a
computer game is photographing or who is operating the
camera, “since the purported ‘camera’ is only providing a
different view or perspective of virtual game activity.”
Id.9 Applicant’s argument implicitly acknowledges that

9 Applicant argues that BATTLECAM cannot be descriptive of its
goods because its goods do not capture and/or transmit visual
data. See Response, p. 6, Brief, pp. 9-10. In contrast, an
excerpt from the website http://joesguy.deviantart.com, which is
referred to as journal and contains entries from various posters,
includes one post that refers to pictures reportedly taken using
the BATTLECAM feature of the Star Wars: Empire at War game (“Now,
Battlecam is great for capturing screenshots of intensive
battles.”) As this is the only evidence offered by the examining
Ser No. 78806413
21
there is a function or feature in certain computer games
that can be accessed by players to provide different views
of the activity transpiring in the game. More
significantly, evidence made of record by the examining
attorney shows that computer game players use “camera”
alone, as well as “battle camera” and “battlecam,” and that
they all signify a feature of a computer game that allows
the player to select alternative views of the field of
battle in a game.10 See the following excerpts made of
record with the examining attorney’s office actions
refusing registration (underscoring added):

“Product Features … Dynamic battle camera shows
the action from multiple angles.” (From
Amazon.com reviews of Suikoden IV game. The same
description also appears on the ebay.com website,
in an auction for a copy of the game).

“The one hang-up with the presentation of all
this is relatively common among real-time
strategies: the camera. Battle for Middle-earth
has two basic views: a 20,000-foot world view as
players decide which territory to defend or
attack next, and a close-in camera that [is] used
during battle. The world view is fine; as

attorney that runs counter to applicant’s contention that its
goods do not capture or transmit images, we acknowledge the entry
but give it little weight.

10 Applicant, in its reply brief, at p. 5, argues that the
examining attorney’s search for this evidence was biased because
the examining attorney searched for uses of “battle camera” and
“battle cam” in conjunction with video games. We reject the
contention because, as noted, the question of descriptiveness is
to be determined not in the abstract but in conjunction with the
identified goods.
Ser No. 78806413
22
expansive as Middle-earth may seem, it’s really
divided into four key areas, none of which
requires out-of-sequence monitoring. The battle
camera, on the other hand, only allows players to
zoom in, making it difficult to monitor every
battle on the battlefield. The game does include
a “bookmark” option … but it doesn’t quite make
up for the fact that moving the camera between
nearby areas can be a bit harrowing. … Camera
snafu aside….” (From review of the game LOTR:
Battle for Middle-earth, www.dailygame.net).11

“Pros: … I cant [sic] describe how fun it is to
watch them destroy everything in theirs [sic]
paths (especially through the battlecam). Cons:
… The camera is also a tad bit of a problem, it
doesnt [sic] zoom nearly far enough so it makes
it kinda hard to watch all the action when you
have 3 Walkers on screen.” (From review of the
game Universe at War: Earth Assault, on the
www.newegg.com website).

“You will, however, notice the first time you go
into battle. Your required bleeding-shaky-
battlecam fades into a beautiful landscape, with
birds flying overhead, calling, and the sun
glinting in your eyes.” (From review of the game
Chrono Cross, on the www.gamevortex.com website).

“You’ve never had so much control in an RTS
before as to the view and position of the camera.
You can zoom WAY out getting a look at the entire
battlefield, or zoom all the way and literally be
at street level with your units watching the
firefights take place. … I would have loved to
see a dedicated ‘battle cam’ button when
selecting a unit to get a great perspective on
battles.” (From review of the game World in
Conflict, on the www.evilavatar.com website).

“Each combat opportunity has been given the
Hollywood look, with camera angles and fancy

11 While the dailygame.net website review was retrieved by the
examining attorney’s search of August 21, 2007, the archived
review itself is dated January 18, 2005, i.e., more than a year
prior to the constructive first use date attributable to the
filing date of applicant’s intent-to-use application.
Ser No. 78806413
23
post-production effects that aren’t the norm in
video-game industry. The battle camera is
dynamic, too, which means you’ll have several
different views of the same scenario before a
turn (either friendly or enemy) is put in motion.
Animations associated with the current turn are
cleverly cued from these interesting camera
angles as well, so, for instance, you might have
roadie-style, worm’s-eye view of an attack, with
the added twist of the lens trailing the
attacker.” (From review of the game Lost
Odyssey, on the website
http://previews.teamxbox.com).

“The overworld camera allows you to view 360
degrees around your party, while the battle
camera can twist, turn, zoom in and out, and give
the player multiple angles on the action during a
fight. … A closeup of its face shows the flames
coming out of its mouth, just before the camera
cuts to a different angle which shows Ifrit blast
through the enemies before it disappears.” (From
a review of the game Final Fantasy VII, on the
website www.gamesarefun.com).12

“The battle camera is also well done, and it
zooms and swoops cinematically during critical
hits and other pivotal attacks. But in keeping
with Blue Dragon’s nothing-special sensibilities,
free-roam environments are endlessly boring and
often striking in their emptiness. There are
also a lot of blurry depth-of-field effects that
make objects in the distance appear all fuzzy
when the camera focuses on the foreground.”
(From a review of the game Blue Dragon, on the
website http://reviews.cnet.com).

We need not cogitate over the etymology of the word
camera, or its shortened form “cam,” and determine whether
it is logical for players of computer games to use

12 The date of this review is July 15, 2005, i.e., prior to the
filing date of applicant’s application.
Ser No. 78806413
24
“camera,” “battle camera” or “battle cam” to refer to a
feature of such games that allows a player to view the
field of battle or places within a game’s terrain as one
would if looking through a camera, or receiving a
transmission from a camera. SPAM is a term long listed in
dictionaries as “a trademark for spiced pork products.”
See The American Heritage Dictionary of the English
Language p. 1237 (1976). Yet the term has also been
adopted by computer users to refer to “unsolicited
commercial bulk e-mail akin to ‘junk mail’ sent through the
postal mail.” See Hotmail Corp. v. Van$ Money Pie Inc., 47
USPQ2d 1020 (N.D. Cal. 1998) (finding of fact no. 5).
Words are adopted and used for various purposes, as the use
of SPAM illustrates. It therefore does not help applicant
overcome the instant refusal to argue that its computer
game software does not include a feature that actually
records images or transmits images, as a camera does. The
fact remains that on the record created in this case, the
function or feature within a game that allows a player to
resort to alternative views of the playing field, elements
thereof, or participants thereon, is referred to by players
as a “camera,” “battle camera” or “battlecam”; and the fact
that such feature may not fit the dictionary definition of
a camera is unimportant. See In re Polo International,
Ser No. 78806413
25
supra, 51 USPQ2d at 1063 (Board unpersuaded by applicant’s
arguments that public would perceive different nuances
between the words “control” and “manage” in case where
applicant’s DOC-CONTROL software was used for “document
management” not document control).
In its reply brief, at pages 5-6, applicant argues
both that the examining attorney put in no evidence to
allow the Board to determine what motivated game reviewers,
or game players, to use the terms “battle camera” or
“battle cam,” and thus the excerpts should not be given a
great deal of weight. In addition, applicant contends the
excerpts made of record provide no proof the games actually
included a “battle camera” feature. In support of the
former point, applicant cites to In re Federated Department
Stores, 3 USPQ2d 1541 (TTAB 1987). The case is not,
however, analogous to the case at hand. In Federated, the
Board appears to have discounted a single NEXIS excerpt
because of the panel’s inability to determine why a term
was used in a headline for a story. This is entirely
distinguishable from the case at hand, wherein the excerpts
in question refer to “camera,” “battle camera” or “battle
cam” not in headlines but in narrative text, thus providing
context for the uses. In addition, there are numerous
excerpts, not a single excerpt of questionable weight. In
Ser No. 78806413
26
regard to applicant’s latter point, i.e., the absence of
evidence that the games being reviewed actually feature
battle cameras, it is not likely that reviewers of games,
or players discussing in online forums their experiences
playing particular games, would discuss nonexistent
features of such games. Nonetheless, the evidence is
significant not because it proves what attributes the
particular games possess, but because it shows that
numerous players or reviewers chose to use the terms
“camera,” “battle camera” or “battle cam” in their
descriptions of the games without need to explain such
terms. Thus, the evidence indicates the terms are
familiar, descriptive terms in the computer game field.
Further, applicant admits that an “aspect of [its] computer
game software” “provides an alternative view of on-screen
movement.” Reply brief, p. 10. It is this type of game
feature that game players or reviewers refer to as a view
provided by a “camera,” “battle camera” or “battle cam.”
Because there is sufficient dictionary and other
evidence on which to conclude that BATTLE and CAM both
would be viewed as descriptive terms when considered in
conjunction with applicant’s goods, and because the
combination of the terms does not result in a composite
that alters the meaning of either of the elements, refusal
Ser No. 78806413
27
on the ground of descriptiveness is appropriate. See In re
Gould Paper Corp., 834 F.2d 1017, 5 USPQ2d 1110, 1111 (Fed.
Cir. 1987). See also, In re Zanova, supra, In re Sun
Microsystems, supra, In re Polo International, supra, and
In re Pennzoil, supra. Moreover, as discussed, the
examining attorney has put into the record references
illustrating use of the composite “battle cam.” Applicant,
in contrast, has put in the record evidence showing that
its search of the Merriam-Webster Online dictionary
(www.merriam-webster.com/dictionary) returned no results
for its search for the term. Nonetheless, as shown above,
the elements BATTLE and CAM have clearly descriptive
meanings when used in conjunction with at least certain
types of computer games that involve battles and include a
feature providing the player with the option to utilize
various views of the battlefield. Under these
circumstances the absence of BATTLECAM from the dictionary
applicant references does not dictate, as applicant
contends, Brief, p. 6, that we find the term to be a
fanciful mark, rather than a descriptive term. See In re
Gould, supra; In re Mine Safety Appliances Co., 66 USPQ2d
1694 (TTAB 2002) (WORKMASK found descriptive despite
absence of any evidence composite appeared in
dictionaries); and In re Energy Products of Idaho, 13
Ser No. 78806413
28
USPQ2d 2049, 2052 (TTAB 1989) (“The absence of [WASTE-TO-
ENERGY] from the dictionary is not, contrary to applicant’s
argument, ‘persuasive evidence’ that the term is not merely
descriptive of applicant’s services.”). See also, Sweats
Fashions Inc. v. Pannill Knitting Co., Inc., 833 F.2d 1560,
4 USPQ2d 1793, 1797 (Fed. Cir. 1987), where absence of term
“sweats” from dictionary and fashion references was found
insufficient to create genuine issue of fact precluding
entry of summary judgment, “in the face of the strong
evidence showing that ‘sweats’ is commonly used as a
descriptive name for fleece garments, particularly
sweatshirts and sweatpants.”
We also disagree with applicant’s contention that the
combination of BATTLE and CAM results in a combination that
is more than merely descriptive. Applicant essentially
argues that the combination of BATTLE and CAM results in an
incongruous composite, or one without an obvious meaning,
because of the wide array of definitions for each. See
Response, p. 3, “arguably the only relationship would be
some form of entertainment between mechanics battling away
at repairing cam shafts in a vehicle,” and p. 5, “BATTLECAM
might be descriptive or suggestive of a customized camshaft
specifically designed for use by auto mechanics to obtain a
competitive advantage in a racing or demolition derby
Ser No. 78806413
29
setting.” As previously noted, however, the meaning of
BATTLE, CAM and the composite BATTLECAM must be determined
by considering the proposed mark in conjunction with the
identified goods. From the perspective of a prospective
purchaser or user of computer game software, the
immediately apparent meaning of BATTLECAM will be that of a
feature of a computer game, as such purchasers are not at
all likely to think of battling car mechanics.
Applicant, although arguing that the composite is
inventive and fanciful, does not specifically argue that
its proposed mark creates any sort of double entendre.
Nonetheless, to be complete in our analysis, we note that
we see no double entendre resulting from the combination of
the two merely descriptive terms. See In re The Place
Inc., 76 USPQ2d 1467, 1470 (TTAB 2005) (“The multiple
interpretations that make an expression a ‘double entendre’
must be associations that the public would make fairly
readily,” quoting TMEP § 1213.05(c)).
In conclusion, we find that prospective purchasers or
users of computer game software will have no need to pause
or cogitate on the possible meaning of applicant’s proposed
mark, when considered in conjunction with computer game
software. The evidence is clear that the use of
“camcorder” and “webcam” at a minimum have conditioned even
Ser No. 78806413
30
the general public to view the “cam” element of composite
words as likely to be a shortened version of the word
camera. Computer game players in particular, because of
their involvement with computers, may be even more likely
than members of the general public to be familiar with the
term “webcam” and these individuals will therefore be even
more predisposed to see “cam” as a short form for the word
camera. Finally, given the evidence of use of “camera,”
“battle camera” and “battlecam” in reviews and commentary
on computer game features that allow a player to manipulate
various views of a battlefield, we have no hesitation or
doubt in concluding that the relevant class of purchasers
will immediately understand BATTLECAM to describe a feature
of computer game software.
Decision: The requirement for an amended
identification of goods is reversed. The refusal of
registration under Section 2(e)(1) is affirmed.