To: | DraftKings, Inc. (docketing@fisherbroyles.com) |
Subject: | U.S. Trademark Application Serial No. 90765962 - EXITBET - 9114.T039US |
Sent: | September 10, 2021 12:19:38 PM |
Sent As: | ecom107@uspto.gov |
Attachments: | Attachment - 1 Attachment - 2 Attachment - 3 Attachment - 4 Attachment - 5 Attachment - 6 Attachment - 7 Attachment - 8 Attachment - 9 Attachment - 10 Attachment - 11 Attachment - 12 Attachment - 13 Attachment - 14 Attachment - 15 Attachment - 16 Attachment - 17 Attachment - 18 Attachment - 19 Attachment - 20 Attachment - 21 Attachment - 22 Attachment - 23 Attachment - 24 Attachment - 25 Attachment - 26 Attachment - 27 Attachment - 28 Attachment - 29 Attachment - 30 Attachment - 31 Attachment - 32 Attachment - 33 Attachment - 34 Attachment - 35 Attachment - 36 Attachment - 37 Attachment - 38 Attachment - 39 Attachment - 40 Attachment - 41 |
United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
U.S. Application Serial No. 90765962
Mark: EXITBET
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Correspondence Address:
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Applicant: DraftKings, Inc.
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Reference/Docket No. 9114.T039US
Correspondence Email Address: |
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NONFINAL OFFICE ACTION
The USPTO must receive applicant’s response to this letter within six months of the issue date below or the application will be abandoned. Respond using the Trademark Electronic Application System (TEAS). A link to the appropriate TEAS response form appears at the end of this Office action.
Issue date: September 10, 2021
The referenced application has been reviewed by the assigned trademark examining attorney. Applicant must respond timely and completely to the issue(s) below. 15 U.S.C. §1062(b); 37 C.F.R. §§2.62(a), 2.65(a); TMEP §§711, 718.03.
· Section 2(e)(1) Refusal
· Requirement for Information about Applicant’s Services
Search Results
The trademark examining attorney searched the USPTO database of registered and pending marks and found no conflicting marks that would bar registration under Trademark Act Section 2(d). 15 U.S.C. §1052(d); TMEP §704.02.
However, applicant should note the following grounds for refusal.
SECTION 2(e)(1) REFUSAL - MERELY DESCRIPTIVE
The attached evidence shows that “EXIT BET” is a term of art in the gambling industry, used to refer to a participant’s final bet. Two major reasons for not protecting descriptive marks are (1) to prevent the owner of a descriptive mark from inhibiting competition in the marketplace and (2) to avoid the possibility of costly infringement suits brought by the trademark or service mark owner. In re Abcor Dev. Corp., 588 F.2d 811, 813, 200 USPQ 215, 217 (C.C.P.A. 1978); TMEP §1209. Businesses and competitors should be free to use descriptive language when describing their own goods and/or services to the public in advertising and marketing materials. See In re Styleclick.com Inc., 58 USPQ2d 1523, 1527 (TTAB 2001). The attached website screenshots indicate a competitive need by others in the gambling industry to use the wording “EXIT BET” to describe types of bets. The applicant’s gambling and bookmaking services will involve or enable the placing of exit bets. Accordingly, registration is refused under Section 2(e)(1) of the Trademark Act.
If applicant responds to the refusal, applicant must also respond to the requirement(s) set forth below.
Requirement for Information about Applicant’s Services
(1) Fact sheets, instruction manuals, brochures, advertisements and pertinent screenshots of applicant’s website as it relates to the services in the application, including any materials using the terms in the applied-for mark. Merely stating that information about the services is available on applicant’s website is insufficient to make the information of record.;
(2) If these materials are unavailable, applicant should submit similar documentation for services of the same type, explaining how its own product or services will differ. If the services feature new technology and information regarding competing services is not available, applicant must provide a detailed factual description of the services. Factual information about the goods must make clear how they operate, salient features, and prospective customers and channels of trade. For services, the factual information must make clear what the services are and how they are rendered, salient features, and prospective customers and channels of trade. Conclusory statements will not satisfy this requirement.; and
(3) Applicant must respond to the following questions:
· Do applicant’s identified services feature promotional events involving final bets?
· Do applicant’s competitors use “EXIT BET” to advertise similar services?
· Who is the typical consumer of applicant’s services?
· Please explain how the applicant will be using the phrase “EXIT BET” to promote its identified services.
See 37 C.F.R. §2.61(b); TMEP §§814, 1402.01(e).
Failure to comply with a request for information is grounds for refusing registration. In re Harley, 119 USPQ2d 1755, 1757-58 (TTAB 2016); TMEP §814.
How to respond. Click to file a response to this nonfinal Office action.
/Yatsye I. Lee/
Trademark Examining Attorney
Law Office 107
Phone: 571-272-3897
yatsye.lee@uspto.gov (for informal inquiries)
RESPONSE GUIDANCE