Thursday, February 27, 2014

TTAB Affirms Refusal of "4D" as Merely Descriptive or Deceptively Misdescriptive of Amusement Park Attraction

The Board affirmed the PTO's alternative refusals of the mark 4D for "entertainment services in the nature of an amusement park attraction, namely, a themed area featuring mirror labyrinths with rotating mirrors therein," finding the mark either merely descriptive or deceptively misdescriptive of the services under Section 2(e)(1). Applicant Amazing Mazes argued that, in common parlance, "4D" refers to special effects such as moving seats, water mists, or scents. But the Board found the meaning of the term to be not so limited, and if it were, then it misdescribes applicant's services. In re Amazing Mazes LLC, Serial No. 85122528 (February 25, 2014) [not precedential].

Mere Descriptiveness: Examining Attorney Ramona Ortega Palmer submitted evidence that the term "4D" in the entertainment industry means that an attraction includes special effects which, the Board found, would include "rotating mirrors" or special lighting. Particularly probative was applicant's use of the term in a descriptive sense in its own advertising: "One of San Antonio's newest attractions, Ultimate Mirror Maze will have you seeing double in an amusing 4D moving mirror maze experience." Moreover, applicant's specimen of use (depicted above) also serves to emphasize the descriptive nature of "4D."

The Board concluded that, when considered in the context of applicant's services, the term "4D" would be perceived by consumers as identifying or describing the special effects of rotating mirrors and lighting. Competitors in the field should be able to use the term "4D" when describing their own mirror maze or labyrinth.

Deceptive Misdescriptiveness:  Assuming for the sake of argument that the term "4D," as suggested by applicant, is perceived to refer to such special effects as water sprays, odors, shaking or sound and does not encompass rotating mirrors or special effects lighting, then the term misdescribes applicant's services because potential customers would expect such special effects.

Would consumers believe the misrepresentation to be true? Applicant argued that consumers would not because they would not expect special water or movement effects in an enclosed maze environment. The Board pointed out, however, that "4D" also includes odor, sound, or wind effects, which might be found in a maze. Consumers are therefore likely to believe that applicant's services would include some type of "4D" special effects typical of other "4D" amusement park attractions but absent from applicant's maze.

Therefore, since both prongs of Section 2(e)(1) had been satisfied vis-a-vis this refusal, the Board affirmed it as well.

Read comments and post your comment here.

TTABlog note:  If the misdescription were material to the purchasing decision, the term might also be refused as deceptive for the services under Section 2(a). The Examining Attorney did not make that refusal.

Text Copyright John L. Welch 2014.


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