99276833•Evan Jordan Maisano
Texte intégral
Mailed: August 12, 2026 UNITED STATES PATENT AND TRADEMARK OFFICE Trademark Trial and Appeal Board ———— In re Evan Jordan Maisano ———— Serial No. 99276833 ———— Evan Jordan Maisano, pro se. David Collier, Trademark Examining Attorney, Law Office 109, Michael Kazazian, Managing Attorney. ———— Before Cohen, Lavache, and Brock, Administrative Trademark Judges. Opinion by Lavache, Administrative Trademark Judge: Applicant, Evan Jordan Maisano, seeks registration on the Principal Register of the proposed standard-character mark MAGNETBALL for “action skill games,” in International Class 28.1 The Trademark Examining Attorney refused registration of the proposed mark under Trademark Act Section 2(e)(1), 15 U.S.C. § 1052(e)(1), on the ground that it is merely descriptive of Applicant’s identified goods. After the 1 Application Serial No. 99276833, filed July 10, 2025, based on an allegation of a bona fide intention to use the mark in commerce, under Trademark Act Section 1(b), 15 U.S.C. § 1051(b). THIS OPINION IS NOT A PRECEDENT OF THE TTAB
Serial No. 99276833 - 2 - Examining Attorney issued a final refusal, Applicant filed a request for reconsideration, which the Examining Attorney denied. Applicant then filed this appeal, which has been fully briefed and is ready for decision. For the reasons explained below, we affirm the refusal to register the proposed mark. I. Relevant Law Section 2(e)(1) of the Trademark Act bars registration of a mark that is merely descriptive when used on or in connection with an applicant’s identified goods or services, and the mark has not otherwise acquired distinctiveness. See 15 U.S.C. §§ 1052(e)(1), 1052(f). A term is merely descriptive “if it immediately conveys knowledge of a quality, feature, function, or characteristic of the goods or services with which it is used.” In re Chamber of Com. of the U.S., 675 F.3d 1297, 1300 (Fed. Cir. 2012) (quoting In re Bayer AG, 488 F.3d 960, 963 (Fed. Cir. 2007)); see also In re TriVita, Inc., 783 F.3d 872, 874 (Fed. Cir. 2015). By contrast, a mark is suggestive if it “requires imagination, thought, and perception to arrive at the qualities or characteristics of the goods.” In re Gyulay, 820 F.2d 1216, 1218 (Fed. Cir. 1987). Descriptiveness must be assessed not in the abstract, but “in relation to the goods for which registration is sought, the context in which it is being used, and the possible significance that the term would have to the average purchaser of the goods because of the manner of its use or intended use.” Bayer, 488 F.3d at 964 (citing In re Abcor Dev. Corp., 588 F.2d 811, 813 (CCPA 1978)). In simpler terms, “[w]e ask ‘whether someone who knows what the goods and services are will understand the mark to convey information about them.’” In re Fallon, No. 86882668, 2020 TTAB LEXIS 464, at *21-22 (quoting Real Foods Pty Ltd. v. Frito-Lay N. Am., Inc., 906 F.3d 965, 974
Serial No. 99276833 - 3 - (Fed. Cir. 2018)). Here, in view of the identified goods, we must consider the perception of the average consumers of action skill games. Evidence of the relevant purchasers’ understanding of a term or phrase in connection with particular goods “may be obtained from any competent source, such as purchaser testimony, consumer surveys, listings in dictionaries, trade journals, newspapers[,] and other publications.” Real Foods, 906 F.3d at 974 (quoting Royal Crown Co. v. Coca-Cola Co., 892 F.3d 1358, 1366 (Fed. Cir. 2018)). “These sources may include [w]ebsites, publications and use ‘in labels, packages, or in advertising materials directed to the goods.’” In re N.C. Lottery, 866 F.3d 1363, 1368 (Fed. Cir. 2017) (quoting Abcor, 588 F.2d at 814). Evidence of an applicant’s own usage beyond those noted above may also be considered when determining descriptiveness. See In re Omniome, Inc., No. 87661190, 2019 TTAB LEXIS 414, at *14. Notably, “‘[t]he fact that Applicant may be the first or only user of a term does not render that term distinctive’ if . . . it has been shown to be merely descriptive of the goods identified in the application.” Fallon, 2020 TTAB LEXIS 464, at *32-33 (quoting In re Fat Boys Water Sports LLC, No. 86490930, 2016 TTAB LEXIS 150, at *10); see also In re Swatch Grp. Mgmt. Servs. AG, No. 85485359, 2014 TTAB LEXIS 131, at *29 n.50 (“Being ‘the first and only one to adopt and use the mark sought to be registered does not prove that the mark is not descriptive.’”) (quoting In re Bailey Meter Co., 102 F.2d 843, 844 (CCPA 1939)). II. Analysis With a proposed mark like MAGNETBALL, we first consider the meaning of the mark’s component terms and then determine whether the proposed mark, as a whole,
Serial No. 99276833 - 4 - is merely descriptive. DuoProSS Meditech Corp. v. Inviro Med. Devices Ltd., 695 F.3d 1247, 1255 (Fed. Cir. 2012). That is, we assess whether the combination of component terms in the mark “conveys any distinctive source-identifying impression contrary to the descriptiveness of the individual parts.” Fat Boys, 2016 TTAB LEXIS 150, at *14- 15 (quoting In re Oppedahl & Larson LLP, 373 F.3d 1171, 1175 (Fed. Cir. 2003)). If each component “retains its merely descriptive significance in relation to the goods, the combination results in a composite that is itself merely descriptive.” Fat Boys, 2016 TTAB LEXIS 150, at *15 (citing In re Tower Tech., Inc., No. 75709532, 2002 TTAB LEXIS 300, at *10). Here, the Examining Attorney has provided the following definitions of the proposed mark’s component terms: • magnet: “a body having the property of attracting iron and producing a magnetic field external to itself”;2 • ball: “a spherical or ovoid body used in a game or sport.”3 Based on these definitions, the Examining Attorney argues that, “in the context of the goods . . . ‘MAGNET’ identifies a feature of the applicant’s action skill game, namely, a part of the action skill game that attracts and produces a magnetic field and . . . ‘BALL’ identifies a feature of the goods, namely, a spherical object used in the action skill game.”4 And, when these terms are combined, the Examining Attorney 2 December 1, 2025 Nonfinal Office Action at TSDR 6 (excerpt from online version of the MERRIAM-WEBSTER DICTIONARY). 3 Id. at 15 (excerpt from online version of the MERRIAM-WEBSTER DICTIONARY). 4 Examining Attorney’s Brief, 6 TTABVUE 4.
Serial No. 99276833 - 5 - contends, the combination, MAGNETBALL, “immediately describes a feature of the goods, namely, games featuring, at least in-part, a magnet, a ball, and/or a magnet or magnetic ball.”5 In further support of this conclusion, the Examining Attorney has submitted internet evidence showing third-party use of the phrase “magnet ball” (or the plural form “magnet balls”) in connection with various toys and games. For example:6 • Walmart.com offers an educational puzzle toy described as, inter alia, “Wooden Magnet Balls Puzzles,” featuring a magnetic stick that can be used to move magnet beads to a corresponding place on the puzzle board.”7 • Alibaba.com features various product listings for, inter alia, “DIY Creative Educational Magnet Ball Rod Toys for Kids,” “Neodymium Magnet Balls Puzzle Toy,” “Montessori Magnet Balls Toddler Activities,” “Traditional Magnet Balls Set,” “Magnet Ball Toys,” and “Magnet Balls.”8 • Feelflux.com advertises the “Spin Flux,” a fidget toy consisting of a torus-shaped device inside of which “is the strongest magnet ball that humankind can produce on Earth today.”9 According to the website, the “magnet ball spins freely in one way and resists rotation in another,” producing an electric current “that interacts with the ball’s magnetic field,” and “holds the essence of the Spin Flux experience.”10 5 Id. 6 In all the examples that follow, the emphasis on certain wording is ours. We are not considering any of the cited examples for the truth of the statements they contain, but instead as evidence of the nature of the use of MAGNETBALL (or MAGNET BALL) and thus how the relevant consumers of Applicant’s goods may perceive that term. See In re Merrill Lynch, Pierce, Fenner, & Smith, Inc., 828 F.2d 1567, 1570 (Fed. Cir. 1987); In re Cordua Rests., Inc., 823 F.3d 594, 599 (Fed. Cir. 2016). 7 December 1, 2025 Nonfinal Office Action at TSDR 35. 8 Id. at 44-48. 9 Id. at 28. 10 Id. at 32.
Serial No. 99276833 - 6 - • The website lblackfriday.com offers the “Brookstone Skill Set,” which is described as “a magical science gadget” consisting of a metal ball and an aluminum tube, which “enables [the user] to perform all kinds of skill tricks by keeping the magnet ball in the air by relying on the special magnetic force alone.”11 • Buckyballsshop.com offers a ten-piece “Magnet Balls Fidget Gadget,” which, based on the photographs appearing on the website, appears to consist of a set of magnetic spheres which can be connected magnetically to make different shapes.12 • Bestproductreviews.com provides a list of the “10 Best Magnet Balls of 2026,” all of which appear to consist of sets of magnetic spheres that can be formed into different shapes for fun, relaxation, or creative purposes.13 Applicant argues that “[t]he Examining Attorney’s evidence largely consists of third-party uses of the separated phrases ‘magnet ball’ and ‘magnet balls’ for products such as fidget toys, desk toys, puzzle sets, magnetic beads, and similar items.”14 According to Applicant, “[e]ven if that evidence shows descriptive use of those phrases in connection with those products, it does not establish that the single, compressed 11 Id. at 54. While this website features pricing in euros rather than U.S. dollars and thus appears to originate in a country other than the U.S., “English language material obtained from foreign websites . . . has been accepted as competent evidence in trademark examination when it is likely that U.S. consumers have been exposed to the website or news publication.” 8 TTABVUE 10 (citing In re Well Living Lab Inc., No. 86440401, 2017 TTAB LEXIS 156, at *12 n.10 (“[I]t is settled that [i]nformation originating on foreign websites or in foreign news publications that are accessible to the United States public may be relevant to discern United States consumer impression of a proposed mark.” (internal quotations omitted))). Here, we find the submitted excerpt from this website be probative because the website is in English and is evidently accessible from the U.S. See Well Living Lab, 2017 TTAB LEXIS 156, at *12 n.10. 12 January 23, 2026 Final Office Action at TSDR 7. 13 Id. at 52-58. 14 Applicant’s Reply Brief, 7 TTABVUE 3.
Serial No. 99276833 - 7 - mark MAGNETBALL is understood by relevant consumers to describe Applicant’s identified goods.”15 We disagree. The evidence set forth above establishes that the phrase “magnet ball,” or the plural form “magnet balls,” may be used to describe magnetic spheres generally, and that consumers of toys, games, and puzzles have been exposed to use of that phrase in connection with magnetic spheres that are elements of toys, games, and puzzles. While the evidence does not show extensive use of the phrase “magnet ball” in the specific context of action skill games, it does indicate that the properties of “magnet balls” could be utilized in action skill games requiring physical dexterity and coordination. Further, the fact that the evidence shows use of “magnet ball” (two words) instead of “magnetball” (one word) does not make the evidence any less relevant or probative in our analysis. Simply put, an applicant may not obtain exclusive rights to an otherwise descriptive phrase by merely presenting the terms in that phrase as a compound term. See, e.g., Abcor, 588 F.2d at 814-15 (GASBADGE merely descriptive, if not generic, for gas monitoring badges); In re Orleans Wines, Ltd., 1977 TTAB LEXIS 96, at *4 (BREADSPRED descriptive for jams and jellies serving as a spread for bread) (no number in original); In re Perkin-Elmer Corp., 1972 TTAB LEXIS 108, at *5 (LASERGAGE merely descriptive for interferometers utilizing lasers) (no number in original); cf. In re Gould Paper Corp., 834 F.2d 1017, 1019 (Fed. Cir. 1987) (SCREENWIPE generic for a wipe for cleaning television and computer screens); 15 Id.
Serial No. 99276833 - 8 - Cummins Engine Co. v. Cont’l Motors Corp., 359 F.2d 892, (CCPA 1966) (TURBODIESEL generic for internal combustion engines). Likewise, evidence showing descriptive use of the plural form of a term may support a finding of descriptiveness of the singular form, and vice versa. See, e.g., In re Cordua Rests., Inc., 823 F.3d 594, 603 (Fed. Cir. 2016) (rejecting applicant’s argument that pluralizing the proposed mark rendered it non-generic, noting that “[w]hile each trademark must always be evaluated individually, pluralization commonly does not alter the meaning of a mark”). Regarding its own action skill games, Applicant argues that the Examining Attorney improperly “reduced Applicant’s identified goods to a game said to comprise ‘a magnet, a ball, and/or a magnet ball,” and that this “framing is narrower than the actual identification.”16 However, when assessing descriptiveness, it is entirely appropriate to consider all types of goods encompassed by the wording in the identification of goods. See In re Country Oven, Inc., No. 87354443, 2019 TTAB LEXIS 381, at *4 (“Where the identification of [goods or] services is broad, the Board ‘presume[s] that the [goods or] services encompass all [goods or] services of the type identified.’” (quoting Sw. Mgmt., Inc. v. Ocinomled, Ltd., No. 76393986, 2015 TTAB LEXIS 176, at *60-61)); In re Cryomedical Scis. Inc., No. 74238772, 1994 TTAB LEXIS 23, at *6 (holding SMARTPROBE merely descriptive where the identification goods was broad enough to include all types of disposable cryosurgical probes, including those containing electronic devices or microprocessors). And, here, the 16 Id. at 4.
Serial No. 99276833 - 9 - wording used to identify Applicant’s goods, “action skill games,” is broad enough to encompass action skill games involving magnetic spheres. Indeed, Applicant’s response to the Examining Attorney’s requirement for information regarding the nature of the identified goods indicates that the goods consist of a “game system,” “which can include a ball-based game object” and “magnetically influenced components.”17 Applicant argues that its acknowledgment of these features of its goods does not “answer the legal question on appeal” of “whether the applied-for mark immediately describes the identified goods as a whole in the minds of consumers.”18 It is true that, by itself, this information does not answer the question before us. But we are not viewing the information in isolation. Instead, as noted above, we must consider descriptiveness “in relation to the goods for which registration is sought, the context in which it is being used, and the possible significance that the term would have to the average purchaser of the goods because of the manner of its use or intended use.” Bayer, 488 F.3d at 964. Under that analysis, Applicant’s statements, when considered with the other evidence of record, provide further support for the conclusion that the identified goods may have characteristics or features for which the term MAGNETBALL has descriptive significance. Accordingly, we agree with the Examining Attorney that the average consumer of action skill games will immediately understand the wording MAGNETBALL as 17 January 7, 2026 Response to Nonfinal Office Action at TSDR 1. 18 Applicant’s Reply Brief, 7 TTABVUE 4.
Serial No. 99276833 - 10 - conveying information about the goods, namely that they feature or include a magnetic sphere. And, despite Applicant’s arguments to the contrary, this is sufficient to find the proposed mark merely descriptive. See Chamber of Com., 675 F.3d at 1300 (“A mark ‘need not recite each feature of the relevant goods or services in detail to be descriptive,’ it need only describe a single feature or attribute.” (quoting In re Dial-A-Mattress Operating Corp., 240 F.3d 1341, 1346 (Fed. Cir. 2001)). In reaching our determination, we reject Applicant’s argument that “[a] consumer encountering the term MAGNETBALL would not immediately know what the sport involves without further explanation,”19 which “places the mark squarely in the suggestive, not descriptive, category.”20 Applicant’s argument relies on the mistaken premise that the mark is to be considered in the abstract. But “[w]hether consumers could guess what the product is from consideration of the mark alone is not the test.” Hangzhou Mengku Tech. Co. v. Shanghai Zhenglang Tech. Co., No. 91272143, 2024 TTAB LEXIS 575, at *24 (quoting In re Am. Greetings Corp., No. 73284539, 1985 TTAB LEXIS 97, at *3-4). Again, the mark must be considered “in relation to the goods or services for which registration is sought, the context in which the mark is 19 Regarding Applicant’s reference to a “sport,” Applicant argued in its opening brief that “[t]he refusal is based on an incorrect legal premise and an improper characterization of the applied-for mark as naming a physical product or toy,” but, “[i]n reality, MAGNETBALL identifies a sport and organized competitive activity, not a tangible good.” Applicant’s Appeal Brief, 4 TTABVUE 2. As the Examining Attorney points out, however, the application iden- tifies “‘action skill games,’” which are tangible goods properly classified in International Class 28, not an ‘organized competitive activity’ or ‘sport.’” Examining Attorney’s Brief, 6 TTABVUE 6. Applicant’s reply brief did not raise this argument again and correctly referred to goods, rather than a sport or organized competitive activity. Applicant’s Reply Brief, 7 TTABVUE 2-4. 20 Applicant’s Appeal Brief, 4 TTABVUE 3.
Serial No. 99276833 - 11 - used, and the possible significance that the mark is likely to have to the average purchaser encountering the goods or services in the marketplace.” Hangzhou Mengku Tech., 2024 TTAB LEXIS 575, at *23-24. In view of the record here, we find no basis for concluding that the relevant consumers seeking action skill games, would need to engage in a multi-stage reasoning process to determine the significance of MAGNETBALL when applied to Applicant’s goods. In other words, we have no doubt that “‘someone who knows what the goods . . . are will understand the mark to convey information about them.” Fallon, 2020 TTAB LEXIS 464, at *21-22. III. Conclusion Two significant reasons for not registering merely descriptive marks are: “(1) to prevent the owner of a mark from inhibiting competition in the sale of particular goods; and (2) to maintain freedom of the public to use the language involved, thus avoiding the possibility of harassing infringement suits by the registrant against others who use the mark when advertising or describing their own products.” In re Stereotaxis, Inc., 429 F.3d 1039, 1042 (Fed. Cir. 2005) (quoting Abcor, 588 F.2d at 813). We have considered all the arguments and evidence of record, and conclude that MAGNETBALL, when considered as a whole, is merely descriptive of Applicant’s goods. Thus, despite Applicant’s arguments to the contrary,21 other entities in the marketplace who offer action skill games featuring or including a magnetic sphere should be free to use MAGNETBALL in advertising such goods. 21 Id. (arguing that the “evidence cited by the Examining Attorney . . . does [not] show that competitors need to use [MAGNETBALL] to describe their offerings”).
Serial No. 99276833 - 12 - Decision: We affirm the refusal under Trademark Act Section 2(e)(1) to register Applicant’s proposed mark MAGNETBALL.
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