Friday, February 16, 2007

Applicant Hits Appellate Jackpot: Convinces TTAB that an Arcade Game is a Slot Machine

Applicant Eolith's appellate gamble paid off when the Board reversed the PTO's refusal to register EL DORADO for "computer electronic games; automatic slot machines." The Examining Attorney maintained that the specimen of use (immediately below) did not show use of the mark in connection with the identified goods, but the Board sided with Applicant. In re Eolith Co., Serial No. 78139104 (February 9, 2007) [not precedential].

There was no debate that Applicant's product was not an "electronic computer game." The Board noted that "its operation by gamers appears to be primarily mechanical." [The user controls a crane built into the machine to rake coin-like medals off the center pile. If the user rakes off enough medals, a prize is awarded.]

The Examining Attorney maintained that the specimen of use showed an arcade game, properly classified in Class 28. She argued that if Applicant's game was accepted as a slot machine in class 9 because it is operated via a coin slot, then coin-operated washing machines (class 7) and coin-operated vibrating beds (class 20) would also be in class 9.

Dictionary definitions of "slot machine" were in disagreement. The PTO's definitions restricted "slot machines," other than "one-armed" bandits, to "vending machines" that are coin operated. Applicant's definitions and two judicially-noticed definitions defined "slot machines" more broadly, so as to encompass all machines operated by dropping a coin into a slot.

The Board noted that Eolith's machine is not a "vending machine," but instead is a game. However, the majority of the definitions "do not restrict 'slot machines' to only 'vending machines,' and the machine pictured in the specimen fits the broad definition of a slot machine."

The Board therefore concluded that the specimen "is sufficient evidence of use of the mark for the identified goods, i.e., 'automatic slot machines.'"

TTABlog comment: It appears that, in the application as filed, Applicant included "automatic slot machines" in its class 28 goods, claiming intent to use for those goods. It also identified amusement apparatus in claim 9, based on actual use. The specimen of use submitted with the application applied to the class 9 goods. When Applicant received a Section 2(d) refusal for its Class 28 goods, it deleted that class, and changed its Class 9 identification to that discussed above. In other words, it moved "automatic slot machines" from class 28 to class 9, and then relied on the original class 9 specimen to show use on "slot machines." Is there any wonder the Examining Attorney put up a fight?

In my view, if the EL DORADO game is a slot machine, some poor old lady is going to be very disappointed when her bag of quarters yields nothing more than a stuffed teddy bear or a stale SNICKERS.

Text Copyright John L. Welch 2007.


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