Narrowing RDCO's IC 041 Recitation Does Not Escape 99901250 — TMEP Says So in One Sentence, and the Marks Are Identical

This is legal-adjacent research by a non-lawyer, not legal advice. It reports what the TMEP and the cited TTAB/Federal Circuit authority actually say and what that implies for a decision. It is not a filing recommendation and it is not a clearance opinion.

The question

"Can a narrowed, puzzle-specific IC 041 recitation realistically avoid a 2(d) citation against Serial 99901250's unrestricted 'Online computer gaming services', or does that breadth swallow any narrowing RDCO attempts?"

Context: this was the #1 open follow-up from [[2026-08-29-hex-tree-squarely-uspto-status]], which found a live pro-se standard-character SQUARELY ITU (Serial 99901250, filed 2026-06-23, IC 009 + IC 041, Max Travis Young, Brooklyn NY) sitting senior to any RDCO filing in RDCO's two caution classes. It gates whether RDCO files IC 009/041 at all.

What we already know (from the vault)

• Per [[2026-08-29-hex-tree-squarely-uspto-status]], the IC 041 recitation on 99901250 is exactly four words — "Online computer gaming services" — with no limitation on genre, platform, channel, or purchaser. Its IC 009 recitation is by contrast tightly drawn to chess competition, matchmaking, wagering and tournament management. Hex Tree Games, the party every earlier brief worried about, holds nothing on the US register.
• Per [[2026-06-20-squarely-common-law-priority-vs-hex-tree]], RDCO's 2023 KDP book use is senior only in IC 016 and does not mechanically carry into IC 009/041; zone-of-natural-expansion is a defensive doctrine (Dollar Financial v. Brittex), not an offensive one.
• Per [[2026-06-13-squarely-uspto-trademark-filing-strategy]], the plan is a standard-character SQUARELY word mark, IC 016 first, expanding to IC 009/041/028 at iOS launch. That brief scored the dominant refusal risk as §2(e)(1) descriptiveness, not §2(d) — an assessment that predates the discovery of 99901250.
• Per [[2026-06-24-squarely-baseline-marks-status-reverification]], automated register reads via WebFetch fail (JS-gated); a real browser session is required. That constraint held again in this pass.

What the web says

Primary text pulled 2026-09-04 01:03–01:06 EDT. TMEP §1207.01(a)(iii) was read verbatim from the USPTO's own RDMS print view; the §1207.01(a), §1207.01(d)(viii), §1208.01 and §1208.02(a)–(d) text was read from the BitLaw TMEP mirror (May 2024 Ed.) because the RDMS section hrefs for those sections were not resolvable without the viewer's client-side TOC — flagged as a mirror, not the USPTO server, for those four.

• The dispositive sentence is in TMEP §1207.01(a)(iii), and it is not ambiguous. Verbatim: *"If the cited registration describes goods or services broadly, and there is no limitation as to their nature, type, channels of trade, or class of purchasers, it is presumed that the registration encompasses all goods or services of the type described, that they move in all normal channels of trade, and that they are available to all classes of purchasers. … Therefore, if the cited registration has a broad identification of goods or services, an applicant does not avoid likelihood of confusion merely by more narrowly identifying its related goods."* (TMEP §1207.01(a)(iii), current ed.)
• That is not a soft presumption — the Board is forbidden from reading limitations in. The section quotes New Era Cap Co., 2020 USPQ2d 10596, at *15-16, citing SquirtCo v. Tomy Corp., 697 F.2d 1038, 1042-43 (Fed. Cir. 1983) and In re Bercut-Vandervoort, 229 USPQ 763, 764 (TTAB 1986): "the [Board] may not read limitations into [the] unrestricted registration or [] application." The on-point applied case is In re Linkvest S.A., 24 USPQ2d 1716 (TTAB 1992) — broad "computer programs recorded on magnetic disks" was held to encompass all such programs including the applicant's narrower type, travelling in all normal channels, available to all purchasers. Same shape as ours, one class over. (same source)
• Cosmetic limitations that don't change the nature of the thing are specifically called out as insufficient. In re i.am.symbolic, 866 F.3d 1315, 1326 (Fed. Cir. 2017) — restricting goods to those "associated with William Adams, professionally known as 'will.i.am'" imposed "no meaningful limitation." Bd. of Regents v. S. Ill. Miners, 110 USPQ2d 1182, 1190-93 (TTAB 2014) — "college imprinted" vs "professional baseball imprinted" clothing did not distinguish goods, channels, or consumers "in any meaningful way." A recitation reading "providing online puzzle games" is the same species of adjective-level narrowing applied to a genus the senior claim already owns outright. (same source)
• The marks being identical makes the relatedness bar lower, not higher. TMEP §1207.01(a): "the more similar the marks at issue, the less similar the goods or services need to be" — In re Shell Oil Co., 992 F.2d 1204, 1207 (Fed. Cir. 1993) ("even when goods or services are not competitive or intrinsically related, the use of identical marks can lead to the assumption that there is a common source"); In re Country Oven, 2019 USPQ2d 443903, at *5 ("Where identical marks are involved… the degree of similarity between the goods and services that is required… declines"). Both filings are standard-character SQUARELY. DuPont factor 1 offers RDCO nothing. (TMEP §1207.01(a))
• Procedurally, a pending application cannot generate a 2(d) refusal — only an advisory and a suspension. TMEP §1208.01: "The examining attorney cannot refuse registration under §2(d)… based on a conflicting mark in an earlier-filed application until the conflicting mark registers," and priority among conflicting pending applications runs on effective filing dates, "without regard to whether the dates of use in a later-filed application are earlier than the filing date or dates of use of an earlier-filed application" (37 C.F.R. §2.83(a)). §1208.02(c): the examiner must suspend the junior application until the senior one "is registered or… is abandoned" (37 C.F.R. §2.83(c)). §1208.02(d): if the senior application abandons, the examiner "should either approve the later-filed application for publication or issue"; if it registers, the examiner cites it and "this will be a first refusal under §2(d)." (§1208.01, §1208.02(c), §1208.02(d))
• Two narrow escape hatches exist in the doctrine, and both are worth naming. (1) In re Thor Tech, 90 USPQ2d 1634, 1638 & n.10 (TTAB 2009) and In re Trackmobile, 15 USPQ2d 1152, 1154 (TTAB 1990) permit extrinsic evidence to define unclear trade terminology — not to restrict it. (2) A consent agreement from the senior party is "but one factor" (In re N.A.D., 754 F.2d 996, 999 (Fed. Cir. 1985)) but a "clothed" one with actual trade-channel and field-of-use restrictions carries "substantial" weight (In re Mastic, 829 F.2d 1114, 1117 (Fed. Cir. 1987); In re Dare Foods, 2022 USPQ2d 291). (TMEP §1207.01(d)(viii))
• Live status re-verified today. TSDR self-stamped 2026-09-04 01:03:33 EDT: Serial 99901250 is still LIVE/APPLICATION/Awaiting Examination, status date still Jun. 23, 2026, no examining attorney assigned, no law office assigned, no attorney of record, prosecution history still exactly the three same-day 2026-06-23 entries. Recitations unchanged and verbatim as recorded on 2026-08-29. (TSDR sn99901250)

Convergences and contradictions

• Convergence: [[2026-08-29-hex-tree-squarely-uspto-status]] called the flat IC 041 line "the problem" and "if any single line blocks RDCO, it is that one." The doctrine confirms that read and sharpens it — the breadth is not merely a bad fact to argue around, it is a presumption the Board is barred from reading limitations into.
• Contradiction with the framing in the backlog entry and in the earlier plan: the useful question is not "does breadth swallow narrowing" (it does) but "is a 2(d) refusal ever reached at all." §1208.01 and §1208.02 mean no refusal can issue while 99901250 is pending, and if it dies the file is approved. The recitation-drafting question is downstream of, and much smaller than, the survival question.
• A tension the earlier briefs did not surface: §1208.01's filing-date rule governs ex parte examination order only. It says so expressly — earlier use dates are disregarded in that context. Section 2(d) itself bars registration of a mark confusingly similar to one "previously used in the United States by another and not abandoned," which is the inter partes track (opposition/cancellation), where priority runs on use. RDCO's 2023 IC 016 use predates 99901250's 2026 constructive-use date. I did not verify the inter partes priority mechanics with a primary citation in this pass — flagged as the highest-value unverified item below, and constrained in any event by the [[2026-06-20-squarely-common-law-priority-vs-hex-tree]] finding that IC 016 use does not travel freely into IC 041.

Synthesis for RDCO

Direct answer: no. A narrowed, puzzle-specific IC 041 recitation does not avoid the citation, and the TMEP says so in a single sentence written for exactly this fact pattern. "Online computer gaming services" is a genus with no limitation as to nature, type, channels of trade, or class of purchasers. Under §1207.01(a)(iii) that recitation is presumed to encompass every service of that type — a puzzle game is a computer game — moving in all normal channels, sold to all purchasers, and the Board "may not read limitations into" it. "Therefore… an applicant does not avoid likelihood of confusion merely by more narrowly identifying its related goods." Linkvest applied that to software and i.am.symbolic and S. Ill. Miners applied it to exactly the kind of adjective-level narrowing RDCO would be attempting. Confidence here is high — this is not an outcome-variance question where reasonable examiners differ; it is a stated rule with the applied cases collected in the manual itself. The one thing that would make it higher is the second fact: both marks are standard-character SQUARELY, identical, which under Shell Oil and Country Oven lowers the relatedness showing the examiner needs. RDCO has no DuPont factor 1 argument and, after narrowing, still no DuPont factor 2 or 3 argument.

But the framing has been wrong, and that is the actually useful finding. The recitation question assumes a refusal is coming. It is not — not yet, and possibly not ever. TMEP §1208.01 is categorical: an examiner cannot refuse under §2(d) on the strength of a pending application. What happens instead is §1208.02(b)-(c): RDCO gets an advisory letter with a printout of 99901250 attached, and then a suspension that runs until 99901250 either registers or abandons. §1208.02(d) is the fork. If 99901250 abandons, the examiner "should either approve the later-filed application for publication or issue" — RDCO's file resumes and the whole problem evaporates without RDCO ever arguing a DuPont factor. If it registers, RDCO gets a first 2(d) refusal at that point, against a registration whose breadth is by then unrebuttable by narrowing. So the decision is not "how do we word IC 041." It is "do we want to buy a lottery ticket on a stranger's ITU dying, and what does the wait cost us."

Three things that change the shape of the decision. (1) Narrowing still has one non-2(d) job. A narrowed recitation will not dodge the citation, but it does reduce RDCO's §2(e)(1) descriptiveness surface, it survives a Statement of Use honestly (RDCO can only ever prove use on what it actually ships), and it is the recitation RDCO would want if a consent agreement ever becomes the path — §1207.01(d)(viii) weights consents heavily when they contain real field-of-use and trade-channel restrictions, and a puzzle-only recitation is the raw material for one. Narrow because it is accurate and because it is optionality, not because it dodges 2(d). (2) The IC 009 half is genuinely separable and much weaker as a blocker. 99901250's IC 009 recitation is limited on its face to chess competition, matchmaking, wagering, tournament management. §1207.01(a)(iii)'s presumption cuts the other way for a restricted recitation — the breadth argument that kills RDCO in 041 is unavailable to the senior party in 009. (3) IC 016 and IC 028 remain completely clear on the live register per the 2026-08-29 read, and nothing in this analysis touches them. The books-first filing should not be held hostage to any of this, and IC 028 (physical puzzles) is an unobstructed way to widen RDCO's register footprint while 041 is unresolvable.

Where this stops being a research question and becomes an attorney question. Three specific triggers, and the founder should treat any of them as the point to engage counsel rather than iterate on this internally: (a) before any IC 041 filing goes in, because the filing fee buys a suspension of unknown length and that is a real spend with a real opportunity cost; (b) if 99901250 publishes, because the opposition window is 30 days and the inter partes priority question — whether RDCO's 2023 IC 016 use plus relatedness supports an opposition — is exactly the kind of question that needs a lawyer and cannot be settled from the TMEP; (c) if approaching Max Travis Young about a consent or an assignment is ever on the table, because a naked consent is nearly worthless (In re N.A.D., Bay State Brewing) and drafting a "clothed" one is a legal-drafting exercise, not a Ray exercise. On the empirical side — how long a suspension would actually run — that is the separate queued question from [[2026-08-29-hex-tree-squarely-uspto-status]] on pro-se ITU abandonment rates, and this brief deliberately does not guess at it. The one datum worth carrying: 73 days after filing, 99901250 still has no examining attorney and no law office assigned, so the clock on the fork in §1208.02(d) has not meaningfully started.

What I could not verify, stated plainly. (i) Whether "Online computer gaming services" is an accepted entry in the USPTO ID Manual or is indefinite under TMEP §1402.11 — if indefinite, the examiner would require an amendment and the blocking breadth could shrink on its own, which is materially decision-relevant. The ID Manual's API returned CORS failures and 404s across four endpoint patterns and its master-list download URLs served the SPA shell. Unverified — do not assume either way. (ii) A frequency check on how many live IC 041 filings use that exact phrase failed: URL-driven advanced queries on tmsearch.uspto.gov returned "No results found" for both the target and a control query that should have matched many records, so the zero is a broken query, not a real absence — reported here only so nobody later mistakes it for a finding. (iii) The inter partes priority mechanics noted above. (iv) TMEP §§1208.01, 1208.02(a)-(d), 1207.01(a) and 1207.01(d)(viii) were read from the BitLaw mirror (May 2024 Ed.), not the USPTO server; §1207.01(a)(iii) — the load-bearing one — was read directly from uspto.gov.

Why this is in the vault

This closes the top open follow-up from [[2026-08-29-hex-tree-squarely-uspto-status]] and changes what the pending Squarely IC 009/041 filing decision is actually about: not recitation drafting (which cannot work), but whether to spend a filing fee to enter a §1208.02(c) suspension of unknown duration behind a stranger's pro-se ITU. It also gives any future attorney engagement the exact sections and cases to be briefed on by name.

Open follow-ups

• Is "Online computer gaming services" an accepted USPTO ID Manual entry for IC 041, or would an examiner issue an indefiniteness requirement under TMEP §1402.11 that forces the senior applicant to narrow it? The ID Manual was unreachable this pass; a browser-driven UI search would settle it and it materially changes how much scope 99901250 actually blocks.
• In inter partes proceedings, can an opposer whose prior use is in a different class (IC 016 printed puzzle books, 2023) establish §2(d) priority and relatedness against an IC 041 online-gaming applicant — and what does the TTAB record show about success rates for cross-class prior-use oppositions of that shape?
• What is the median and distribution of time-to-first-Office-action for USPTO trademark applications filed mid-2026, and how does that set the realistic floor on how long a §1208.02(c) suspension behind an unexamined ITU would run before the §1208.02(d) fork is even reached?

Related

• [[2026-08-29-hex-tree-squarely-uspto-status]] — the parent brief; discovered Serial 99901250 and posed this question as its #1 follow-up
• [[2026-06-20-squarely-common-law-priority-vs-hex-tree]] — the IC 016-only seniority finding that constrains the opposition lever discussed above
• [[2026-06-13-squarely-uspto-trademark-filing-strategy]] — the IC 016-first word-mark plan; its §2(e)(1)-dominant risk assessment predates 99901250
• [[2026-06-19-squarely-trademark-clearance-search]] — original Hex Tree collision and the two-mark baseline
• [[2026-06-24-squarely-baseline-marks-status-reverification]] — documents the WebFetch/JS-gating constraint that again required a real browser here
• [[2026-06-23-squarely-ios-brand-registry-trademark-timing]] — why IC 009/041 became live at all: the iOS launch
• [[2026-08-03-amazon-ip-accelerator-cost-and-timeline]] — the per-class cost side of any file/wait decision
• [[strategy]] — Squarely Puzzles strategy; KDP books load-bearing, iOS app pre-launch

Sources

• Vault: ~/rdco-vault/06-reference/research/2026-08-29-hex-tree-squarely-uspto-status.md
• Vault: ~/rdco-vault/06-reference/research/2026-06-20-squarely-common-law-priority-vs-hex-tree.md
• Vault: ~/rdco-vault/06-reference/research/2026-06-13-squarely-uspto-trademark-filing-strategy.md
• Vault: ~/rdco-vault/06-reference/research/2026-06-19-squarely-trademark-clearance-search.md
• Vault: ~/rdco-vault/06-reference/research/2026-06-24-squarely-baseline-marks-status-reverification.md
• Vault: ~/rdco-vault/06-reference/research/2026-06-23-squarely-ios-brand-registry-trademark-timing.md
• Vault: ~/rdco-vault/06-reference/research/2026-08-03-amazon-ip-accelerator-cost-and-timeline.md
• Vault: ~/rdco-vault/01-projects/squarely-puzzles/strategy.md
• USPTO TMEP §1207.01(a)(iii), "Reliance on Identification of Goods/Services in Registration and Application," current ed., read verbatim from uspto.gov 2026-09-04: https://tmep.uspto.gov/RDMS/TMEP/print?version=current&href=TMEP-1200d1e5267.html
• TMEP §1207.01(a), "Relatedness of the Goods or Services" (BitLaw mirror, May 2024 Ed.): https://www.bitlaw.com/source/tmep/1207-01-a.html
• TMEP §1207.01(d)(viii), "Consent Agreements" (BitLaw mirror, May 2024 Ed.): https://www.bitlaw.com/source/tmep/1207-01-d-viii.html
• TMEP §1208.01, "Priority for Publication or Issue Based on Effective Filing Date" (BitLaw mirror, May 2024 Ed.): https://www.bitlaw.com/source/tmep/1208-01.html
• TMEP §1208.02(b), "Giving Notice of the Earlier Application" (BitLaw mirror): https://www.bitlaw.com/source/tmep/1208-02-b.html
• TMEP §1208.02(c), "Suspension of Later-Filed Application" (BitLaw mirror): https://www.bitlaw.com/source/tmep/1208-02-c.html
• TMEP §1208.02(d), "Action on Later-Filed Application upon Disposition of the Earlier Application" (BitLaw mirror): https://www.bitlaw.com/source/tmep/1208-02-d.html
• USPTO TSDR — Serial 99901250 SQUARELY, status re-verified LIVE/Awaiting Examination, TSDR-stamped 2026-09-04 01:03:33 EDT: https://tsdr.uspto.gov/statusview/sn99901250
• Regulations cited in the above: 37 C.F.R. §2.83(a) (filing-date priority among conflicting applications); 37 C.F.R. §2.83(c) (suspension of later-filed application)
• Cases cited via the TMEP sections above (not independently retrieved): In re Linkvest S.A., 24 USPQ2d 1716 (TTAB 1992); In re Diet Ctr., 4 USPQ2d 1975 (TTAB 1987); In re i.am.symbolic, llc, 866 F.3d 1315 (Fed. Cir. 2017); Bd. of Regents v. S. Ill. Miners, 110 USPQ2d 1182 (TTAB 2014); SquirtCo v. Tomy Corp., 697 F.2d 1038 (Fed. Cir. 1983); In re Shell Oil Co., 992 F.2d 1204 (Fed. Cir. 1993); In re Country Oven, Inc., 2019 USPQ2d 443903 (TTAB 2019); In re Thor Tech, Inc., 90 USPQ2d 1634 (TTAB 2009); In re N.A.D. Inc., 754 F.2d 996 (Fed. Cir. 1985); In re Mastic Inc., 829 F.2d 1114 (Fed. Cir. 1987); In re Bay State Brewing Co., 117 USPQ2d 1958 (TTAB 2016); In re Dare Foods Inc., 2022 USPQ2d 291 (TTAB 2022)
• Not reachable this pass (flagged, not guessed): USPTO ID Manual (idm-tmng.uspto.gov / tmidm.uspto.gov) — API 404s and CORS failures, master-list download served SPA shell; tmsearch.uspto.gov URL-driven advanced GS-field queries returned 0 results including on a control query, so no frequency data was obtained