TTAB Finds App Icon Descriptive of Mobile Games

In a precedential decision, in the case of Hangzhou Mengku Technology Co., Ltd and Fuzhou Mengku Technology Co., Ltd v. Shanghai Zhenglang Technology Co., Ltd, Opposition No. 91272143 (Dec. 30, 2024), the U.S. Trademark Trial and Appeal Board (Board) refused registration of the mark , filed by Shanghai Zhenglang Technology Co., Ltd (applicant) on the basis that the mark was merely descriptive of the identified goods under Section 2(e)(1) of the Trademark Act, 15 U.S.C. Section 1052(e)(1).

The applicant sought registration of its mark (Serial No. 90371133) in connection with downloadable electronic game software in Class 9. Hangzhou Mengku Technology Co., Ltd and Fuzhou Mengku Technology Co., Ltd (opposers)—competitors of the applicant—opposed this application on the ground that the applicant’s mark is merely descriptive of the applicant’s electronic game software goods.

The opposers argued, and the Board agreed, that applicant’s mark conveys an immediate idea of a feature of the applied-for goods, namely, that the applicant’s product is a block puzzle game.

The applicant argued that its mark is not an accurate pictorial representation of the applicant’s goods and contains fanciful elements, and thus, the mark is not merely descriptive of the applied-for goods. However, the Board noted that users of the applicant’s game could create scenarios, within the natural progression of the game, that resulted in similar “symmetrical configuration[s]” as depicted in the applicant’s mark.

The Board also considered evidence of third-party applications that used icons that displayed individual features similar to the applicant’s mark, and the Board found that the design elements of the applicant’s mark were either common elements used by third parties in a crowded field of block puzzle app icons, or were taken directly from the game itself.

Accordingly, the Board sustained the opposition on the ground that the applicant’s mark was merely descriptive, thus reaffirming the notion that a pictorial representation of a mark may be considered just as descriptive as a wordmark if it immediately conveys information as to the content, subject matter, feature, or characteristic of the goods or services.

This article was originally published in the INTA Bulletin.