IN RE:  NORTH CAROLINA LOTTERY:  August 10, 2017.  Before Prost, Chen and Hughes. 

Takeaway:

• As a legal matter, the TTAB did not err by considering the explanatory text of the specimens in the inquiry of whether the mark was descriptive.

• A mark that merely describes a feature of goods and services in view of the explanatory text of the specimens and the commercial context is merely descriptive.

Procedural Posture:

Appellant, North Carolina Lottery, appealed the TTAB’s decision denying registration of a mark in connection with lottery services and games.  CAFC affirmed.

Synopsis:

• Trademark: The CAFC affirmed the TTAB’s decision denying registration of the mark “FIRST TUESDAY.”  The TTAB did not err by considering the explanatory text of the specimens in the inquiry of whether the mark was descriptive.  Substantial evidence supported the TTAB’s finding that “FIRST TUESDAY” was a merely descriptive mark.  The commercial context demonstrated that a consumer would immediately understand that the mark referred to a new good or service being offered on the first Tuesday of a month.  The mark was less an identifier of the source of goods or services and more a description of a feature or characteristic of those goods or services.