SieMatic Schweiz GmbHDownload PDFTrademark Trial and Appeal BoardAug 14, 2009No. 79033882 (T.T.A.B. Aug. 14, 2009) Copy Citation Mailed: August 14, 2009 PTH UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re SieMatic Schweiz GmbH ________ Serial No. 79033882 _______ Daniel J. Bourque of Bourque & Associates, P.A. for SieMatic Schweiz GmbH. Laura A. Hammel, Trademark Examining Attorney, Law Office 116 (Michael W. Baird, Managing Attorney). _______ Before Hairston, Bucher and Mermelstein, Administrative Trademark Judges. Opinion by Hairston, Administrative Trademark Judge: SieMatic Schweiz GmbH has filed an application to register the mark SIGMANN (in standard character form) for the following goods: sinks, lamps and lighting fixtures in International Class 11; printed matter, namely, brochures and catalogs about kitchens, kitchen furniture and kitchen furniture parts, kitchen cupboards, built-in furniture for kitchens, tables, seats, benches, cupboards, cabinets, shelves and room dividers; envelopes, promotional and display cards displaying kitchens, kitchen furniture and THIS OPINION IS NOT A PRECEDENT OF THE TTAB Serial No. 79033882 2 kitchen furniture parts, kitchen cupboards, built-in furniture for kitchens, tables, seats, benches, cupboards, cabinets, shelves and room dividers; stationery and calendars in International Class 16; and furniture and their parts, namely, kitchen furniture, kitchen cupboards, built-in furniture for kitchens; tables, seats, benches, cupboards, cabinets, shelves, room dividers; furniture and furniture parts featuring built-in lighting fixtures sold as an integral component thereof in International Class 20.1 Registration has been finally refused pursuant to Section 2(e)(4) of the Trademark Act, 15 U.S.C. 1052(e)(4), on the ground that the mark is primarily merely a surname. Applicant has appealed; applicant and the trademark examining attorney have filed briefs. Whether a term is primarily merely a surname depends on the primary significance of the term to the purchasing public. In re Harris-Intertype Corp., 518 F.2d 629, 186 USPQ 238 (CCPA 1975); and In re Champion International Corp., 229 USPQ 550 (TTAB 1985). The examining attorney bears the burden of establishing a prima facie case in support of the conclusion that the primary significance of the term to the purchasing public would be that of a 1 Application Serial No. 79033882, filed on December 7, 2006 under the Madrid Protocol, Section 66(a) of the Trademark Act, 15 U.S.C. §1141(f), based on International Registration No. 0859674. Serial No. 79033882 3 surname. In re BDH Two Inc., 26 USPQ2d 1556 (TTAB 1993) and cases cited therein. If a prima facie case is presented, then the burden of rebutting that showing shifts to the applicant. In re Etablissements Darty et Fils, 759 F.2d 15, 225 USPQ 652 (Fed. Cir. 1985); and In re Harris- Intertype Corp., 186 USPQ at 239. “The question of whether a word sought to be registered is primarily merely a surname within the meaning of the statute can only be resolved on a case by case basis,” taking into account various factual considerations. Darty, 225 USPQ at 653. There are five accepted factors to be considered in the analysis: (1) Is the word a common or rarely used surname? (2) Does anyone connected with the applicant have that surname? (3) Does the word have meaning other than as a surname? (4) Does the word look and sound like a surname? (5) Is the word presented in use in a stylized form distinctive enough to create a separate non-surname significance? In re Benthin Management GmbH, 37 USPQ2d 1332, 1333-34 (TTAB 1995). Serial No. 79033882 4 Because applicant seeks to register SIGMANN in standard character form, the fifth factor is not a factor in this case and we consider the record in light of the first four factors.2 We consider first the rareness of the surname. The examining attorney submitted a listing of thirty-three entries (at least five of which appear to be duplicates) for persons with the surname Sigmann retrieved from the Lexis/Nexis PFIND database. In addition, the examining attorney submitted excerpts of news stories from the Lexis/Nexis database which refer to five persons with the surname Sigmann. With respect to these news stories, they do not demonstrate that individuals having the surname Sigmann have enjoyed broad exposure to the general public such that Sigmann is well recognized as a surname. Compare In re Gregory, 70 USPQ 2d 1792, 1795 (TTAB 2004) [“[E]xistence of these [public officials] with the surname ROGAN leads us to conclude that the name may be rare when viewed in terms of frequency of use as a surname in the general population, but not at all rare when viewed as a 2 We note that applicant sought to amend the drawing of its mark to depict the mark in special form. The examining attorney advised applicant that such an amendment was not permitted, and applicant withdrew the proposed amended drawing. Serial No. 79033882 5 name repeated in the media and in terms of public perception.”]. Based on this evidence, we conclude that Sigmann is an extremely rare surname in the United States. Insofar as the second factor is concerned, i.e., whether any individual connected with applicant has the surname in question, there is no evidence that anyone associated with applicant has the surname Sigmann. The third factor we consider is whether the term SIGMANN has non-surname significance. The examining attorney argues that SIGMANN has no meaning other than as a surname and relies on a printout from the Encarta online dictionary which shows the absence of any listing for the term Sigmann. Applicant, however, maintains that SIGMANN has non-surname significance because the term “mann” has several meanings in German, including “husband,” “man,” and “men.” Applicant’s argument is not persuasive because there is no indication that the term “Sigmann,” as a whole, has an understood meaning in German that can be translated into English. Cf., In re Isabella Fiore LLC, 75 USPQ2d 1564, 1569 (TTAB 2005) [Board concluded that “there is no question of whether the term [FIORE] would be recognized in its current form as the Italian word for ‘flower.’”]. In short, there is no evidence that SIGMANN has non-surname significance. Serial No. 79033882 6 We turn, then, to the fourth and final factor to be discussed, i.e., whether SIGMANN has the look and feel of a surname. This determination is somewhat subjective. The examining attorney maintains that SIGMANN has the look and feel of a surname because it is highly similar to the surname Sigman. The examining attorney’s evidence shows that, at best, the surname Sigman is slightly more recognizable than the surname Sigmann. However, this evidence does not persuade us that SIGMANN has the clear look and feel of a surname. When we view the term SIGMANN under the surname factors set out above, we conclude that the examining attorney has not met her initial burden of showing that the term SIGMANN would primarily be viewed as a surname. Furthermore, to the extent that there is any doubt about whether the examining attorney has established a prima facie case in support of the refusal, we must resolve such doubt in favor of applicant and publish the mark for opposition. See In re Benthin Management GmbH, 37 USPQ2d at 1334. Decision: The refusal to register under Section 2(e)(4) is reversed. Copy with citationCopy as parenthetical citation