Everts Ballon GmbH & Co. KG

Trademark Trial and Appeal Board

Jan 11, 2001

No. 75332745 (T.T.A.B. Jan. 11, 2001)

1/11/01
Hearing: Paper No. 15
September 14, 2000 PTH
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Everts Ballon GmbH & Co. KG
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Serial No. 75/332,745
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Felix J. D’Ambrosio of Jones, Tullar & Cooper, P.C. for
Everts Ballon Gmbh & Co. KG.
Paul F. Gast, Trademark Examining Attorney, Law Office 106
(Mary I. Sparrow, Managing Attorney).
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Before Simms, Hairston and Bottorff, Administrative
Trademark Judges.
Opinion by Hairston, Administrative Trademark Judge:
This is an appeal from the Trademark Examining
Attorney’s final refusal to register the mark EVERTS and
design, as shown below
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/332,745
2
for “toys, namely, balloons made of plastic or other
materials.”1
Registration has been refused on the ground that
EVERTS is primarily merely a surname, under Section 2(e)(4)
of the Trademark Act, 15 U.S.C. 1052(e)(4).
In support of the refusal, the Examining Attorney has
introduced the first 100 (of 966) listings for the surname
Everts from the Phonedisc USA database which contains over
115 million names, addresses and phone numbers. In
addition, the Examining Attorney submitted excerpts from
the Acronyms, Initialisms & Abbreviations Dictionary
(1996); Webster’s New Geographical Dictionary (1988); and
several foreign language dictionaries showing the absence
of any listing of “everts” therein. Also, the Examining
Attorney submitted a number of excerpts from the NEXIS
database which mention the tennis player Chris Evert.
Finally, while the Examining Attorney also submitted an
excerpt from the Random House Unabridged Dictionary 2d. ed.
(1983) wherein the word “evert” is defined as “to turn
outward or inside out,” he maintains that “evert” is not a
word with a readily recognized meaning, such that EVERTS
1 Serial No. 75/332,745 filed July 29, 1997, based upon
applicant’s bona fide intention to use the mark in commerce and
German Registration No. 972607 under Section 44(e) of the
Trademark Act.
Ser No. 75/332,745
3
would not be perceived as a surname.
Applicant, in urging reversal of the refusal to
register, argues that Everts is a rare surname, and as
evidenced by the dictionary excerpt, the word “evert” has
another meaning. Also, applicant maintains that the mark
it seeks to register will not be perceived as a surname
because:
It is fanciful and possesses a design which
produces an effect quite different from
any effect that would be achieved from the
word “EVERTS” alone. The fanciful design
disconnects the mark from the possibility
of it being primarily only a surname. The
extension of the E to produce a partial
oval effect moves the mark away from the
company name Everts.
At the outset, we note that the Office has the burden
of establishing a prima facie case that a term is primarily
merely a surname, and that the test for determining whether
a mark is primarily merely a surname is the primary
significance of the mark as a whole to the purchasing
public. See In re BDH Two Inc., 26 USPQ2d 1556 (TTAB 1993)
and cases cited therein.
After careful consideration of the arguments and
record in this case, we are not persuaded that the public
would regard applicant’s mark EVERTS and design as being
primarily merely a surname. We should point out, however,
that with respect to applicant’s argument that EVERTS is a
Ser No. 75/332,745
4
rare surname, it is well settled that the rareness or
uncommonplace nature of a surname does not necessarily
remove it from the category of “primarily merely a surname”
precluded by Section 2(e)(4) of the Trademark Act. Second,
we have given little weight to the fact that the word
“evert” means to turn outward or inside out. We do not
believe that this meaning would be known to the majority of
the purchasers of applicant’s balloons.
However, as pointed out by applicant, the mark it
seeks to register in this case is not simply EVERTS in
typed or block letters. Rather, applicant’s mark depicts
EVERTS in a highly stylized format. The first letter “E”
is very fanciful and looks similar to an oval or ellipse.
The remaining letters are encompassed within the letter “E”
and are displayed in stylized lettering. Because of the
highly stylized display of applicant’s mark, we question
whether the mark will even be perceived by the public as
the surname EVERTS. The mark could just as easily be
perceived as consisting of a fanciful oval or ellipse
design encompassing the term “verts,” or perhaps a fanciful
depiction of the mark “C verts.” In view thereof, we are
not convinced that the primary significance of applicant’s
mark to the relevant purchasing public would be that of a
surname.
Ser No. 75/332,745
5
To the extent that there is any doubt on the question
of whether the mark would be perceived as primarily merely
a surname, we resolve such doubt in favor of the applicant.
See In re Benthin Management GmbH, 37 USPQ2d 1332 (TTAB
1995).
Decision: The refusal to register under Section
2(e)(4) is reversed.