BATTLECAM held to be descriptive for computer game software
United States of America
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In In re Petroglyph Games Inc (Case 78806413, June 19 2009), in a precedential ruling, the Trademark Trial and Appeal Board (TTAB) has reversed the examiner's decision to require the applicant to amend its identification of goods.
Petroglyph Games Inc, a video game development company known for its innovative real-time strategy titles, applied to register the trademark BATTLECAM on the Principal Register in relation to “computer game software”. Battlecam is a dynamic, artificial intelligence camera system that procedurally generates camera shots during video game battles. Petroglyph successfully introduced the user-controlled functionality in a game entitled Star Wars: Empire at War. The examining attorney objected to identifying the goods as “computer game software” because Petroglyph had used the mark only in conjunction with a particular video game feature. Additionally, the examiner refused registration on the grounds that the mark was merely descriptive. Petroglyph appealed both issues to the TTAB.
On appeal, the TTAB first considered whether the examiner was right to require Petroglyph to amend its identification of goods. The TTAB sought to determine:
- whether Petroglyph had used the BATTLECAM mark for computer game software or a computer game feature; and
- if use as a feature had been established, whether identification as 'computer game software' was appropriate.
In rejecting the examiner’s decision, the TTAB accepted the identification of 'computer game software', even when a mark identifies only a specific game feature. The TTAB observed that video game software requires a considerable amount of computer code to create and control a game’s audio, video and interactive capabilities, and that the modular nature of software in general facilitates the inclusion of specific features within multiple games. The TTAB noted that while a collection of code enabling a particular game could be intuitively identified as computer game software, modules of code that support specific functionality may also use the same identification. However, it would be more precise to include the feature as part of the description (eg, “a feature of computer game software that allows users to ...”).
The TTAB next addressed the examiner’s descriptiveness objection. In affirming the refusal to register the BATTLECAM mark, the TTAB found that the elements 'battle', 'cam', and 'battlecam' have descriptive meanings when used in conjunction with computer games featuring battles and containing functionality that allows players to view various angles of the battlefield from a cinematic perspective. Petroglyph argued that the word 'battlecam' contained no reference to computers, games or software. However, the TTAB stated that a mark is merely descriptive when 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 ... [to] someone who knows what the goods and services are and will understand the mark to convey information about them.” (In re Tower Tech Inc (64 USPQ2d 1314, 1316–1317 (TTAB 2002))).
The TTAB also pointed out that “[t]o be merely descriptive, a term need only describe a single significant quality or property of the goods” (see In re Gyulay (820 F2d 1216 (1987)) and Meehanite Metal Corp v Int’l Nickel Co (262 F2d 806 (1959))).
Petroglyph next argued that although a subset of computer games may involve battles or contests, the word 'battle' does not describe the entire universe of computer game software. The TTAB noted that a term “does not need [to] describe every type or variation of a product listed in an identification to be merely descriptive”. Moreover, even if Petroglyph used the BATTLECAM mark in games not featuring battles, 'battle' would remain a descriptive term for games with battles. Since Petroglyph’s application did not exclude games featuring battles, the TTAB assumed that the identification included games of that nature.
The TTAB used definitions of words from various dictionaries and encyclopaedias to establish the meaning of 'cam' and rejected Petroglyph’s argument that the term referred to 'computer-aided manufacturing' or 'camshafts'. In concluding that players of computer games would understand 'cam' as a reference to 'camera' and to viewpoints that a player may access while playing games, the TTAB relied on two forms of support. First, it cited dictionary references using 'cam' as a short form of 'camera' (eg, camcorder and webcam). Second, the TTAB presented online game reviews where players used the words 'camera', 'battle camera' and 'battle cam' to refer to a video game feature allowing players to choose an alternative view of the battlefield during a game. Even though the Battlecam feature does not fit into the literal dictionary definition of a 'camera', it was sufficient that video game players descriptively referred to the particular functionality as a view provided by a 'camera', 'battle camera' or 'battle cam'.
The TTAB determined that sufficient evidence existed to show that 'battle' and 'cam' would be viewed by prospective purchasers and users of computer game software as descriptive when considered in conjunction with Petroglyph’s game feature, and combining the terms would not alter the meaning of either element or establish inherent distinctiveness. The TTAB concluded that:
“[f]rom the perspective of a [...] 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.”
Howard J Shire, Kenyon & Kenyon LLP, New York
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