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In re North Carolina Lottery

United States Court of Appeals, Federal Circuit

August 10, 2017

IN RE: NORTH CAROLINA LOTTERY, Appellant

         Appeal from the United States Patent and Trademark Office, Trademark Trial and Appeal Board in No. 86/411, 401.

          David E. Bennett, Coats & Bennett, PLLC, Cary, NC, argued for appellant. Also represented by DAVID D. Kalish.

          William LaMarca, Office of the Solicitor, United States Patent and Trademark Office, Alexandria, VA, argued for appellee Joseph Matal. Also represented by NATHAN K. Kelley, Thomas L. Casagrande, Christina Hieber.

          Before Prost, Chief Judge, Chen and Hughes, Circuit Judges.

          PROST, CHIEF JUDGE.

         Appellant North Carolina Lottery (" N.C. Lottery") seeks to register the mark "FIRST TUESDAY' in connec- tion with lottery services and games, to market the introduction of new scratch-off lottery games on the first Tuesday of each month. It appeals the decision of the U.S. Patent and Trademark Office's ("PTO") Trademark Trial and Appeal Board ("TTAB") denying registration of the mark. We affirm.

         I. Background

          N.C. Lottery is a state agency that began operating traditional lottery drawing games and instant lottery scratch-off games in North Carolina in 2006. "In order to maintain interest in its instant scratch-off games, " it introduces new scratch-off games on the first Tuesday of each month. Appellant's Opening Br. 3. N.C. Lottery asserts that it has continuously used the mark FIRST TUESDAY since July 2013 in print materials, on its Website, and on point-of-sale displays for related advertising.

         On October 1, 2014, N.C. Lottery applied for registration of the mark FIRST TUESDAY for "Lottery cards; scratch cards for playing lottery games" and for "Lottery services." J.A. 10-11. It submitted specimens, including the promotional materials reproduced below, that have explanatory text such as "[n]ew scratch-offs" or "[n]ew scratch-offs the first Tuesday of every month."

         (Image Omitted.)

         J.A. 16, 18; see also J.A. 17, 19-21. The examining attorney refused registration, finding that the mark used in the context of N.C. Lottery's promotional materials "merely describes a feature of [its] goods and services, namely, new versions of the goods and services are offered the first Tuesday of every month." J.A. 24.

          N.C. Lottery appealed to the TTAB, which affirmed the refusal to register. Like the examining attorney, the TTAB reasoned that N.C. Lottery's promotional materials make clear that "new scratch-off games are offered on the first Tuesday of every month" and found that such fact would "be so understood by the relevant consumers who encounter the designation FIRST TUESDAY in the marketplace." J.A. 5-6. It found that "[n]o mental thought or multi-step reasoning is required to reach a conclusion as to the nature of the involved goods and services." J.A. 6.

          N.C. Lottery timely appealed. We have jurisdiction under 28 ...


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