Retriever Brands LLC

Trademark Trial and Appeal Board

Mar 14, 2008

No. 78538396 (T.T.A.B. Mar. 14, 2008)

Mailed: March 14, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Retriever Brands LLC
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Serial No. 78538396
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Theodore R. Remaklus of Wood, Herron & Evans, L.L.P. for
Retriever Brands LLC.

Barbara Brown, Trademark Examining Attorney, Law Office 116
(Michael W. Baird, Managing Attorney).
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Before Hairston, Drost and Kuhlke, Administrative Trademark
Judges.

Opinion by Kuhlke, Administrative Trademark Judge:

An application has been filed by Retriever Brands LLC to
register the mark LITTON (in standard character form) on the
Principal Register for goods ultimately identified as “household
appliances, namely, microwave ovens for cooking, electric
toasters, electric coffee makers” in International Class 11.1

1 Application Serial No. 78538396 was originally filed on December 26,
2004, based on a bona fide intention to use the mark in commerce, but
subsequently amended to a contain an allegation of first use anywhere
and in commerce on November 29, 2006.
THIS OPINION IS NOT
A PRECEDENT OF
THE TTAB
Ser No. 78538396
2
The examining attorney has refused registration under
Section 2(e)(4) of the Trademark Act (15 U.S.C. §1052(e)(4)) on
the ground that LITTON is primarily merely a surname. In
response to the final refusal, applicant filed a request for
reconsideration. Within that request, applicant also sought, in
the alternative, to amend its application to seek registration on
the Supplemental Register. See TMEP §§816.04 and 1212.02(c) (5th
ed. 2007).
Applicant has appealed. Both applicant and the examining
attorney have filed briefs. We affirm the refusal to register on
the Principal Register.
A term is primarily merely a surname if, when viewed in
relation to the goods or services for which registration is
sought, its primary significance to the purchasing public is that
of a surname. See In re United Distillers plc, 56 USPQ2d 1220
(TTAB 2000). The burden is on the examining attorney to
establish a prima facie case that a term is primarily merely a
surname. In re Etablissements Darty et Fils, 759 F.2d 15, 225
USPQ 652 (Fed. Cir. 1985). Among the factors to be considered in
determining whether a term is primarily merely a surname are (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; and (4) whether
the term has the "look and sound" of a surname. See In re
Ser No. 78538396
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Benthin Management GmbH, 37 USPQ2d 1332, 1333 (TTAB 1995). See
also In re Gregory, 70 USPQ2d 1792 (TTAB 2004). Because LITTON
is in standard character form, we need not consider the fifth
Benthin factor here, that is, whether the manner in which the
mark is displayed might negate any surname significance. In re
Joint-Stock Co. “Baik”, 84 USPQ2d 1921 (TTAB 2007). With regard
to the second factor, applicant has indicated that no one
associated with it has the surname LITTON and there is nothing in
the record to contradict this statement.
In the present case, we agree with the examining attorney
that the record contains sufficient evidence to make a prima
facie case that the primary significance of the term LITTON to
the purchasing public for applicant’s goods is that of a surname
and that such a showing has not been rebutted by applicant.
In support of her contention that the primary significance
of LITTON is a surname, the examining attorney provided the
following search results from several online directories: 1000
entries and sample listings for individuals with the surname
LITTON retrieved from the Verizon online directory,
www.superpages.com;2 300 results matching LITTON as a surname and
several sample listings from those result from the webpages
411.com and whitepages.com; 100 plus people with the surname

2 The printout indicates that there are more than 1000 matching
listings and only 1000 have been retrieved.
Ser No. 78538396
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LITTON retrieved from switchboard.com; 2120 entries with the
surname LITTON retrieved from the Lexis/Nexis P-Find database;
and 1520 hits for the last name LITTON retrieved from the Social
Security Death Index available at rootsweb.com.
The examining attorney also submitted printouts from online
sources defining LITTON as a surname. See www.rhymezone.com
(noting the definition for LITTON as “name: A surname (rare: 1
in 50000 families; popularity rank in the U.S. #6394)); and
lookwayup.com (LITTON listed as a last name with a frequency rank
of 5394). She also submitted printouts from Merriam-Webster
Online, Bartleby.com and encarta.msn.com/dictionary all
indicating that there are no document matches for the query
LITTON.
In addition, she submitted Lexis/Nexis printouts of
excerpted articles from various publications showing widespread
public exposure to LITTON used as a surname throughout the United
States. See, e.g., Charleston Gazette (West Virginia), Press
Journal (Vero Beach, Florida), Deseret Morning News (Salt Lake
City), Orlando Sentinel (Florida), The News & Observer (Raleigh,
North Carolina), South Bend Tribune (Indiana), Fort Collins
Coloradan, Arkansas Democrat-Gazette (Little Rock, Arkansas), The
Virginian-Pilot (Norfolk, Virginia), The Arizona Republic
(Phoenix), The San Francisco Chronicle (California), Austin
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American-Statesman (Texas), St. Louis Post-Dispatch (Missouri),
Tulsa World (Oklahoma), and Orange County Register (California).
In traversing the refusal, applicant primarily argues that
LITTON is a rare surname and has another recognized meaning.
In support of its contention that LITTON is a rare surname,
applicant submitted printouts of search results from the Verizon
online directory superpages.com based on its own search for
LITTON in specific cities showing only 6 listings in Washington,
D.C., 4 listings in New York City, 3 listings in Los Angeles and
1 listing in Boston. Applicant argues that LITTON is “too rare a
surname to support the ‘primarily merely’ requirement of the
statute.” Br. p. 8. Applicant points to the online directory
evidence submitted by the examining attorney stating that “‘more
than 1000’ residential listings for the surname LITTON, [is] a
meager number” and the search results from the various online
directories represent an “infinitesimally small percentage” of
those directories. Further, applicant points to the “absence of
any significant listings for LITTON in major metropolitan areas.”
Applicant also contends that the newspaper articles submitted by
the examining attorney are “inconclusive of the significance of
the term LITTON as primarily merely a surname,” arguing that the
only type of news articles that would be of significance are
those that concern public personalities. Br. p. 10. Finally,
Ser No. 78538396
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applicant notes that in the Rhymezone.com excerpt LITTON is
defined as a ‘rare’ surname.
Contrary to applicant’s contention, the data retrieved from
the superpages.com and P-find databases, and the Lexis/Nexis
articles, while not indicative of a very common surname, does not
support a finding that the surname is so rare that this factor,
the degree of the surname’s rareness, should weigh in applicant’s
favor, or weigh only slightly in support of the USPTO’s position.
The evidence shows that thousands of people in the United States
have the surname LITTON and are spread throughout the United
States, including Los Angeles, California; Woodhull, Illinois;
Barnhart, Missouri; Hurricane, West Virginia; Smyrna, Georgia;
Laurel, Montana; Lyles, Indiana; Memphis, Tennessee; Des Moines,
Iowa; Rocky Mount, North Carolina; Shreveport, Louisiana; and
Lubbock, Texas among other places. Thus, we find that the
evidence is sufficient for us to conclude that LITTON is not a
rare surname. With regard to the entry from rhymezone.com which
characterizes LITTON as a rare surname, this characterization
appears to be based solely on the frequency of use of LITTON as a
surname in the general U.S. population. However, the fact that
the authors of a web site consider a name rare in terms of its
frequency of use as a surname does not necessarily mean that such
surname will be considered rare under Board case law. See In re
Gregory, supra at 1795 (“name may be rare when viewed in terms of
Ser No. 78538396
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frequency of use as a surname in the general population, but not
at all rare when viewed as a name repeated in the media and in
terms of public perception”). Moreover, a mark may be found to
be primarily merely a surname even though it is not a common
surname. See In re Giger, 48 USPQ2d 1405 (TTAB 2006). See also
In re E. Martoni Co., 78 USPQ2d 589 (TTAB 1975); and In re
Industrie Pirelli Societa per Azioni, 9 USPQ2d 1564 (TTAB 1988).
Applicant’s reliance on In re United Distillers plc, supra
is not persuasive of a different result. In that case, while the
Board did find that HACKLER is a rare surname, the Board also
found that HACKLER had another significant meaning, detracting
from its significance as a surname.
With respect to applicant’s argument regarding the small
percentage of people living in the United States with the surname
LITTON, there is no minimum number of listings needed to prove
that a mark is primarily merely a surname and “given the large
number of different surnames in the United States, even the most
common surnames would represent but small fractions of the total
population.” In re Gregory, supra at 1795.
Finally, with regard to the newspaper articles, although
public personalities may present strong evidence of wide public
exposure, that does not negate the impact of the occurrence of a
surname in widely circulated publications.
Ser No. 78538396
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In support of its contention that LITTON has other meanings,
applicant submitted excerpts of articles retrieved from the
Lexis/Nexis database referring to Litton Systems (or Litton
Industries), a prior user of the name LITTON in connection with
microwave ovens, and an excerpt from Wikipedia mentioning LITTON
Industries under the entry for microwave ovens. Applicant also
submitted prior expired or cancelled registrations owned by
Litton Industries for various LITTON marks.
Applicant argues that “the LITTON brand was well recognized
as a result of the sale in the 1970s and 1980s of millions of
units and millions of dollars worth of LITTON brand microwave
ovens” and “[a]s a result, the primary significance to consumers
of the goods of the present application would not be a surname,
but rather, would be of the well known LITTON brand – that is,
consumers of electric cooking appliances would immediately
associate the LITTON name as reminiscent of the LITTON brand they
knew that made microwave ovens, not as a surname.” Reply Br. p.
4. Further, applicant argues that the evidence of Litton
Industries’ use and applicant’s specimen of use displaying the
term LITTON is evidence that “relates to whether consumers will
perceive the LITTON mark as primarily merely a surname [and i]t
is irrelevant, for purposes of the present refusal, as to who or
what consumers perceive LITTON refers so long as it is not
primarily merely a surname.” Reply br. p. 5.
Ser No. 78538396
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We agree with the examining attorney that this evidence goes
to whether a third-party has acquired distinctiveness, not to
whether the term LITTON is primarily merely a surname. See In re
McDonald’s Corp., 230 USPQ 304, 307 (TTAB 1986) (“In short, we
have here a situation where a noninherently distinctive term,
having no ordinary meaning other than that of a surname is sought
to be registered. While applicant has demonstrated a strong
public association between the mark sought to be registered and
applicant’s restaurant services, the Board concludes that this
evidence is evidence of secondary meaning and that in the absence
of a claim of secondary meaning pursuant to Section 2(f),
registration must be refused under Section 2(e)(3).”)
Applicant’s argument basically contends that because the prior
registrant Litton Industries acquired trademark rights in the
surname LITTON, LITTON is no longer primarily a surname. In
essence, applicant is arguing it should benefit from the prior
registrant’s acquisition of secondary meaning. This argument has
no merit. Acquired distinctiveness refers to the word acquiring
a meaning that points to a particular source. See In re Cazes,
21 USPQ2d 1796 (TTAB 1991) (Applicant argued that LIPP or
BRASSERIE LIPP is no longer primarily merely a surname because
the significance of the term is now that of a mark for her
restaurant; argument rejected because applicant did not seek
registration under Section 2(f)). The fact that the term LITTON
Ser No. 78538396
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may have been identified as a commercial enterprise does not
demonstrate that the term is not primarily a surname. See In re
Harris-Intertype Corp., 518 F.2d 629, 186 USPQ 238, 239 (CCPA
1975) (Cities, towns and other things may be named after an
individual).
Finally, the expired and cancelled third-party registrations
are of no probative value; however, we note that the
registrations for the word LITTON in typed form were registered
under Section 2(f).
Thus, as to the third factor, whether there is another
recognized meaning of the term LITTON, the evidence of record
clearly establishes that there is no other meaning.
As to the factor of the “look and feel” of the term,
applicant argues that “the Board has rejected the argument that,
merely because a mark may not have a recognized meaning other
than as a surname the mark has the ‘look and feel’ of a surname.
Rather, ‘in a case such as this involving a very rare surname, we
cannot assume that the purchasing public will view the mark as a
surname based on exposure to the surname use.’” Reply br. p. 5,
citing In re Joint-Stock Company “Baik,” 84 USPQ2d at 1923.
First, we have not found that LITTON is a rare surname let alone
a very rare surname. However, even under such circumstances we
would not have automatically found that the term was registrable
based only on its frequency. Rather, we still would balance the
Ser No. 78538396
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fact that the surname was very rare with the other surname
factors to determine whether the Office had made out a prima
facie case. While it may be unusual to deny registration of a
very rare surname, decisions of registrability should be made in
light of all probative evidence. See In re Joint-Stock “Baik,”
supra at 1924 (“It is in the case of a rare surname that we need
to weigh ‘look and feel’ carefully.”)
In analyzing the “look and feel” factor, we first note that
there are numerous individuals with the surname LITTON throughout
the United States. Second, it has no other known significance
sufficient to obviate its primary significance as a surname. “It
would not be perceived as an initialism or acronym, and does not
have the appearance of having been coined by combining a root
element that has a readily understood meaning in its own right
with either a prefix or a suffix.” Gregory, 70 USPQ2d at 1796.
The facts of this case are distinguished from In re Sava Research
Corp., 32 USPQ2d 1380 (TTAB 1994) where the Board found the word
SAVA “to have the look and sound of an acronym, and that
applicant’s explanation as to the meaning of SAVA [was] quite
plausible.” In this case, applicant has not argued nor is it
plausible that LITTON would be perceived as an acronym or
abbreviation. Applicant’s argument that observers would parse
apart the word and come up with LITE and TON, is not supported by
evidence or plausible.
Ser No. 78538396
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In conclusion, while LITTON is not a common surname it is
not a rare surname and the record points to no other definitive
recognized meaning for this term. Thus, when we view the term
LITTON under the factors set out in Benthin, we conclude that the
examining attorney has met her initial burden of showing that the
term LITTON when it is used on applicant’s microwave ovens,
electric toasters and electric coffee makers would primarily be
viewed as a surname and applicant has not rebutted this prima
facie case.
Decision: The refusal to register under Section 2(e)(4) of
the Trademark Act on the ground that it is primarily merely a
surname is affirmed. In view of applicant’s alternative
amendment to the Supplemental Register, the application will be
forwarded to the examining attorney for further processing to
accommodate applicant’s request.