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In re North Carolina Lottery

In Evaluating Descriptiveness, No Error in Considering Explanatory Text Appearing on Specimens

In re North Carolina Lottery, (Fed. Cir. Aug. 10, 2017) (PROST, Chen, Hughes) (TTAB) (2 of 5 stars)

Fed Cir affirms denial of registration for “FIRST TUESDAY” mark in connection with lottery services and games. The TTAB did not err in concluding that the mark was descriptive, particularly in view of the submitted specimens, which described “New scratch-offs the first Tuesday of every month.” The opinion describes how the TTAB was entitled to consider this “explanatory text” in assessing descriptiveness, and rejects N.C. Lottery’s argument that the text should not have been considered. It also rejects N.C. Lottery’s argument that the explanatory text should have been taken as evidence of non-descriptiveness.

KEYWORDS: TRADEMARK; DESCRIPTIVENESS