Mischief Brewing Company, LLC

Trademark Trial and Appeal Board

Sep 29, 2016

No. 86311033 (T.T.A.B. Sep. 29, 2016)

This Opinion is Not a
Precedent of the TTAB

Mailed: September 29, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Mischief Brewing Company, LLC
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Serial No. 86311033
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Candace L. Moon of The Craft Beer Attorney APC,
for Mischief Brewing Company, LLC.
Tina L. Snapp, Trademark Examining Attorney, Law Office 116,
Christine Cooper, Managing Attorney.
_____

Before Mermelstein, Lykos and Adlin,
Administrative Trademark Judges.

Opinion by Lykos, Administrative Trademark Judge:
The Mischief Brewing Company, LLC (“Applicant”) seeks registration on the
Principal Register of the mark RICHTER in standard characters for “beer” in
International Class 32.1 The application includes the following translation statement:
“The English translation of ‘Richter’ in the mark is ‘Judge.’”

1 Application Serial No. 86311033, filed June 16, 2014, pursuant to Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), alleging a bona fide intent to use the mark in commerce.
Serial No. 86311033
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The Trademark Examining Attorney has refused registration of Applicant’s mark
pursuant to Section 2(e)(4) of the Trademark Act, 15 U.S.C. § 1052(e)(4), on the
ground that the applied-for mark is primarily merely a surname.
When the refusal was made final, Applicant appealed and requested
reconsideration. The Trademark Examining Attorney maintained the refusal to
register and denied the request for reconsideration. Thereafter, the appeal was
resumed and is now briefed. For the reasons set forth below, we affirm the refusal to
register.
Section 2(e)(4) of the Trademark Act of 1946 provides that absent a showing of
acquired distinctiveness under Section 2(f), 15 U.S.C. § 1052(f), registration on the
Principal Register must be refused if the proposed mark is “primarily merely a
surname.”2 “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.” In re
Hutchinson Technology Inc., 852 F.2d 552, 7 USPQ2d 1490 (Fed. Cir. 1988) (citing In
re Kahan & Weisz Jewelry, Mfg. Corp., 508 F.2d 831, 184 USPQ 421, 422 (CCPA
1975)). See also Harris-Intertype Corp., 518 F.2d 629, 186 USPQ 238, 239 (CCPA
1975)). “[I]t is that impact or impression which should be evaluated in determining
whether or not the primary significance of a word when applied to a product is a
surname significance. If it is, and it is only that, then it is primarily merely a

2 “No trademark by which the goods of the applicant may be distinguished from the goods of
others shall be refused registration on the principal register on account of its nature unless
it ... (e) Consists of a mark which ... (4) is primarily merely a surname.” 15 U.S.C. § 1052.

Serial No. 86311033
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surname.” In re Harris-Intertype Corp., 186 USPQ at 239. See also In re Hutchinson
Technology, 7 USPQ2d at 1492 (quoting Kahan & Weisz Jewelry Mfg. Corp., 184
USPQ at 422)). In evaluating whether a proposed mark is “primarily merely a
surname,” we consider whether “it is also a word having ordinary language meaning”
since “[t]he language meaning is likely to be the primary meaning to the public.” In
re Etablissements Darty et Fils, 759 F.2d 15, 225 USPQ 652, 653 (Fed. Cir. 1985)
(citing Fisher Radio Corp. v. Bird Electronic Corp., 162 USPQ 265, 266-67 (TTAB
1969) (BIRD not primarily merely a surname)). If, however, there is “no common
word meaning,” we must decide the “more difficult question” of whether the mark
“would be perceived as a surname or as an arbitrary term.” Id. In In re Benthin Mgmt.
GmbH, 37 USPQ2d 1332, 1333-34 (TTAB 1995) (“Benthin”), the Board identified
several examples of inquiries or “factors” that may lead to evidence regarding
whether the primary significance of a term to the purchasing public is merely as a
surname.3 In re Integrated Embedded, __ USPQ2d __ (TTAB 2016) (Ser. No.
86140341).

3 Applicant and the Examining Attorney both cite this opinion to which is entirely consistent
with the Court of Appeals for the Federal Circuit and its predecessor court and Board cases
discussed herein. In Benthin, the Board stated that factors to be considered in determining
whether a term is primarily merely a surname include (1) the degree of a surname’s rareness;
(2) whether anyone connected with applicant has that surname; (3) whether the term has
any recognized meaning other than that of a surname; (4) whether the term has the
“structure and pronunciation” of a surname; and (5) whether the stylization of lettering is
distinctive enough to create a separate commercial impression. Where, as here, the mark is
in standard characters, it is unnecessary to consider the fifth factor. In re Yeley, 85 USPQ2d
1150, 1151 (TTAB 2007). “These factors are not exclusive nor presented in order of
importance. We make our determination on a case-by-case basis, and any of the Benthin
factors – singly or in combination – and any other relevant circumstances may shape the
analysis in a particular case.” In re Integrated Embedded, __ USPQ2d __ (TTAB 2016) (Ser.
No. 86140341).
Serial No. 86311033
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In support of the refusal, the Examining Attorney has introduced the following
relevant evidence:
● An online article showing that Richter is the surname of members of
Applicant’s limited liability company. See “Brewing Up Mischief in Arizona:
Interview with Brandon & April Richter,” Drink With The Wench,
http://drinkwiththewench.com (November 18, 2014 Final Office Action).

● Search results from the surname database in Lexis.com showing 43,963
entries for the surname RICHTER. (May 21, 2015 Denial of Request for
Reconsideration).

● Search results from the Whitepages website (www.whitepages.com) finding
100 exact matches for the surname RICHTER in the United States.
(September 29, 2014 Office Action).

● An entry entitled “Richter (surname)” from Wikipedia4 stating “Richter is a
German-language surname (Richter – German for judge),” and listing
well-known individuals bearing the surname. (September 29, 2014 Office
Action).

● Printouts from various web sites showing recognized individuals named
“Richter,” including Charles Francis Richter, a U.S. seismologist who lived
from 1900 to 1985 and the inventor of the “Richter scale”), Jason James Richter
(an American actor), Joey Richter (an American actor and singer), John C.
Richter (U.S. Attorney for the Western District of Oklahoma), Karl W. Richter
(an American aviator), Matthew Richter (an American arts producer), Mike
Richter (an American ice hockey player), Pat Richter (a football player for the
University of Wisconsin-Madison and a Washington D.C. professional football
team), Roy Richter (American auto racer, inventor, and businessman), Stacey
Richter (an American writer of short fiction), and Travis Richter (guitarist of
the American rock band, From First to Last). (November 18, 2014 Final Office
Action).

4 In accordance with our practice, we have considered evidence obtained from Wikipedia
submitted with the Examining Attorney’s first office action since Applicant was afforded the
opportunity to rebut such evidence. See In re Swatch Group Management Services AG, 110
USPQ2d 1751, 1754 n.4 (TTAB 2014) (Board considered Wikipedia evidence submitted with
examining attorney’s first office action which applicant had an opportunity to rebut). See also
Trademark Trial and Appeal Board Manual of Procedure (“TBMP) § 1208.03 (2016).
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Applicant acknowledges that RICHTER is a surname, but argues that it is not
primarily merely a surname because it possesses other well-recognized meanings, the
most well-known being the Richter magnitude scale, a scale formerly used to
quantitatively measure the magnitude of an earthquake. See entry from Wikipedia
entitled “Richter magnitude scale” (May 15, 2015 Request for Reconsideration), and
article titled “Hands on Activity: Magnitude of the Richter Scale” from the web site
www.TeachEngineering.org (October 27, 2014 Response to Office Action). In addition,
Applicant also points to evidence of other non-surname meanings of “Richter”:5
● An excerpt from the online digital history portal of Franklin County, Kansas,
showing “Richter, Kansas” established in 1890. (October 27, 2014 Response to
Office Action).

● Another entry from Wikipedia entitled “Richter” showing other references
including the name of an electro-rock band from Buenos Aires, Argentina; the
Richter tuning scale for harmonicas developed in 1825; Gedeon Richter, Ltd.,
a Hungarian pharmaceutical company; a German toy company from the early
20th century; the song “Going Richter” by The Ziggens; and “Richter’s
transformation” or Richter’s syndrome, a complication of blood-related
neoplasms. (May 15, 2015 Request for Reconsideration).

5 Applicant also submitted search results from the USPTO Trademark Electronic Search
System (“TESS”) database showing various applications and registrations incorporating the
term RICHTER. See October 27, 2014 Response to Office Action. As a general proposition,
the mere listing of third-party applications and registrations is not sufficient to make the
registrations and applications of record. In re Hoefflin, 97 USPQ2d 1174, 1177 (TTAB 2010);
In re Dos Padres Inc., 49 USPQ2d 1860, 1861 n.2 (TTAB 1998); In re Broadway Chicken Inc.,
38 USPQ2d 1559, 1560 n.6 (TTAB 1996). However, in this case, the Examining Attorney
failed to advise Applicant during ex parte examination that the listing was insufficient to
make the registrations of record; therefore, we deem the Examining Attorney to have waived
any objection to consideration of the list itself. See e.g., In re District of Columbia, 101USPQ2d
1588, 1591 (TTAB 2012) (examining attorney’s objection overruled where on remand
applicant submitted copies of the third-party registrations it listed in its response to the first
Office action), aff’d subnom. In re City of Houston, 731 F.3d 1326, 108 USPQ2d 1226 (Fed.
Cir. 2013). That being said, given the incomplete nature of this evidence and the fact that as
noted above, surname refusals must be considered on a case by case basis, the evidence is of
limited probative value. See In re Kysela Pere et Fils Ltd., 98 USPQ2d 1261, 1264 n.6 (TTAB
2011) (TESS listing).
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● The search engine results from Google Translate showing “Richter” as the
German word for “judge.” (October 27, 2014 Response to Office Action).

The existence of such other usages of a surname does not necessarily preclude the
mark from being held primarily merely a surname. The Richter Scale derives its
name from the surname of its inventor, thereby emphasizing its primary significance
as a surname. See In re The British Oxygen Co. Ltd., 161 USPQ 242 (TTAB 1969)
(“[T]he significance of “BOYLE” in Boyle’s Law and Boyle temperature is clearly that
of a surname.”). Inventions, theories, methods, and the like are frequently known by
the surname of their originator, precisely because the surname so used reminds
others of that person. And the remaining references Applicant points to, such as the
tuning scale for harmonicas, geographic location in Kansas, and blood disorder are
relatively obscure or reflect foreign usage. Thus, it is unlikely these other references
would have much, if any, impact on the purchasing public.
Furthermore, the English translation of the German word “richter” as “judge”
actually shows that the surname was derived from ancestral occupation. See In re
Advanced Spine Fixation Systems, Inc., 25 USPQ2d 1367, 1369 (TTAB 1992) (“Many
surnames of foreign origin have obscure meanings which lose out to the primary
surname significance”). The ancestry.com website made of record explains the
meaning and origin of the surname Richter in this context:
German: occupational name or status name for a judge, Middle High
German rihtaere (from rhiten ‘to make right’). The term was used in the
Middle Ages mostly to denote a part-time legal official. Such communal
conciliators held a position of considerable esteem in rural communities;
in Eastern Germany the term came to denote a village headman, which
Serial No. 86311033
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was often a hereditary office. It is this region that the surname is most
frequent. (September 29, 2014 Office Action).

Compare In re Isabella Fiore LLC, 75 USPQ2d 1564, 1569 (TTAB 2005) (Board
applied the doctrine of foreign equivalents to find that consumers would “stop and
translate” “FIORE” as “flower” and reversed examining attorney’s surname refusal).
Applicant also argues that RICHTER is such a rare surname that the public is
unlikely to view it primarily merely a surname. The statute, however, makes no
distinction between rare and commonplace surnames. Kahan & Weisz Jewelry, Mfg.
Corp., 184 USPQ at 422. Even assuming, arguendo, that RICHTER is indeed a
relatively rare surname, a rare surname may be unregistrable under Trademark Act
Section 2(e)(4) if its primary significance to purchasers is that of a surname. See e.g.,
In re Industrie Pirelli Societa per Azioni, 9 USPQ2d 1564, 1566 (TTAB 1988), aff’d,
883 F.2d 1026 (Fed. Cir. 1989) (although the record proves that “Pirelli” is a rare
surname, the evidence shows that mark PIRELLI would be viewed primarily as a
surname by the relevant public.).
In sum, the Examining Attorney has made of record multiple sources showing that
RICHTER is a surname, and Applicant, which is managed by Richters, concedes the
point. The other meanings of “Richter” are either relatively obscure, or in the case of
the Richter scale, carry surname significance. Thus the “primary significance of the
mark as a whole to the purchasing public” is that of a surname.
Accordingly, we find that that the evidence establishes that the mark RICHTER
for “beer” would be perceived by the purchasing public as primarily merely a surname
within the meaning of Section 2(e)(4) of the Trademark Act.
Serial No. 86311033
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Decision: The refusal to register Applicant’s mark RICHTER for “beer” under
Section 2(e)(4) is affirmed.