Thursday, June 18, 2009

Bellagio Loses Bet on Specimen of Use for DUNES mark for Casino Services

The TTABlog® writes today (link here) on the Trademark Trial and Appeal Board’s decision affirming the PTO’s refusal to allow Bellagio, LLC, the MGM-Mirage subsidiary which owns the Bellagio Hotel & Casino, to register the mark DUNES for “casino services” based on a specimen of use showing the mark on a slot machine (pictured below). See In re Bellagio, LLC, Serial No. 77175007 (June 2, 2009) (not precedential).

Bellagio argued that its DUNES slot machines, which appear throughout the Bellagio casino floor (and are not themselves available for purchase by casino patrons), are used for gaming in Bellagio's casino, thus offering casino services to customers and thereby creating an association between the DUNES mark and the Bellagio.

However, the Board found that this specimen failed to provide the necessary “direct association” between the mark and the applied-for services such that the mark would be “readily perceived as identifying the source of the services.” The Board also noted that there was no evidence that “placing a mark on a slot machine is a typical manner for a casino to use its mark in connection with casino services” nor did Bellagio provide any evidence that the DUNES mark was used on other advertising to promote its casino services.

In the end, the Board found that the association that Bellagio argued customers encountering the DUNES slot machine would have in connecting such slot machines to Bellagio’s casino services offerred where the slot machine is located was not direct, but instead would require “at least one mental” step (including possibly an awareness of the fact that the Bellagio is located where the former Dunes Hotel & Casino used to stand).

The Dunes Hotel & Casino
(demolished in 1993 to make way for the Bellagio)

[Query: Do you think it would have made a difference if the services recited in Bellagio's application had been "
gambling services" instead of "casino services"?]

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