TTAB Affirms Nine Failure-To-Function Refusals For Geometric Shapes Displayed On Gaming Machines

Applicant IGT's appellate gamble didn't pay off, as the Board affirmed nine (IX) failure-to-function refusals of certain geometric shapes as trademarks for gaming machines. The shapes appear on the displays of video poker machines sold by IGT. The Board found that the proposed marks were not inherently distinctive and lacked acquired distinctiveness. In re IGT, Serial Nos. 87448071, 87448088, 87448100, 87448105, 87448113, 87448123, 87448129, 87448137, 87448145 (January 10, 2020) [not precedential] (Opinion by Deputy Chief Judge Mark A. Thurmon).

The Board observed that there are actually four alleged marks at issue, but three of the four are presented in a black and white version and a color version. One of the alleged marks is presented in black and white, in color, and in black and white with shading to indicate contrasting colors. That adds up to nine.