Precedential No. 30: Illustration of Block Puzzle Merely Descriptive of Computer Game Software, Says TTAB

In this doubly rare case - a Section 2(e)(1) opposition involving an illustration of the goods - the Board found the proposed mark shown below to be merely descriptive of computer game software. "[C]onsumers who know that Applicant’s product is a block puzzle game will understand the mark to immediately convey information about it; that is, that the product is a downloadable and/or mobile computer block puzzle game as described in Applicant’s identification of goods." Hangzhou Mengku Technology Co., Ltd and Fuzhou Mengku Technology Co., Ltd v. Shanghai Zhenglang Technology Co., Ltd, Opposition No. 91272143 (December 30, 2024] [precedential] (Opinion by Judge Lawrence T. Stanley, Jr.). [oral argument held on September 19, 2024].

Applicant’s proposed mark is the "app icon" that is displayed alongside the app title, developer, and other information in online search results, including in the Google Play App Store, and on the app listing page in the Google Play App Store. The opposers develop and publish mobile games for download on the Google Play App Store, including a mobile game featuring block puzzles, and so they were entitled to a statutory cause of action [f/k/a standing] under Section 2(e)(1).

Noting the old saw that "a photograph can be worth a thousand words," the Board pointed out that "a pictorial representation, such as an illustration or photograph, may be considered just as descriptive as a word if it immediately conveys information as to the content, subject matter, feature, or characteristic of the goods or services." See, for example, In re Eight Ball, Inc., 217 USPQ 1183, 1184 (TTAB 1983) (pictorial representation of a cue stick and eight ball found merely descriptive of billiard parlor services).

To be considered merely descriptive, the illustration or representation need not be completely accurate, realistic or true-to-life. “[t]he ultimate guideline … is whether the design forthwith conveys an immediate idea of a feature of the goods and lacks any additional fanciful, arbitrary, or suggestive matter.” The Board noted that applicant’s identification of goods is "unrestricted as to the type of downloadable or mobile computer game, and necessarily includes computer games of all sorts, including block puzzle games."

The Board found that the proposed mark "conveys an immediate idea of a feature of the goods, namely that Applicant’s product is a block puzzle game, as described in the identification of goods." Moreover, the mark "lacks any additional fanciful, arbitrary, or suggestive matter."

Applicant’s design elements are either taken directly from the game (i.e., pale block game pieces against a dark background with faint lines forming a grid of rows and columns behind the game pieces, a brown border surrounding the gameplay area, and transparent blocks forming the identical shape below where the floating block appears), or are common elements used by third parties in a crowded field of block puzzle app icons (i.e., a glow of various colors around the active game piece and symmetrical placement of blocks). The minor changes in tint of the game pieces and the background of the gameplay area, the curved border instead of a square border, the symmetrical placement of blocks, and the choice to make the glow blue in Applicant’s proposed mark are “hardly sufficient to render the design distinctively stylized or fanciful.”

And so, the Board sustained the opposition.

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TTABlogger comment: The Board's use of the language "block puzzle game as described in Applicant’s identification of goods" is misleading, since the idenfication does not expressly list "block puzzle games." Better to say "as encompassed within" rather than "as described in," I think.

Text Copyright John L. Welch 2025.