The Board affirmed another Section 2(e)(4) refusal, finding the mark HECHTER (Stylized) to be primarily merely a surname for leather goods and clothing. Although a very rare surname, it is the surname of applicant’s founder and it has no other demonstrated meaning other than as a surname. In re Aulback Lizenz AG, Serial No. 79156860 (November 7, 2016) [not precedential].
The Board acknowledged the admonitions in its recent precedential decisions in Integrated Embedded [TTABlogged here] and Eximius Coffee [TTABlogged here] “not to apply any particular inquiry or factors mechanically or invariably give them equal weight.” The entire record is to be examined, and there is no rule as to the kind or amount of evidence necessary to show that a proposed mark would be perceived primarily as a surname.
The Connection of a Person With the Surname Hechter to Applicant: Applicant conceded that a person named Hechter is connected with the company, noting several references to the retired French fashion designer Daniel Hechter. Applicant further conceded that this connection “tends to favor upholding the refusal.” Although the evidence was not as strong as that in the two precedential cases, the Board found that the website evidence supported a finding that Hechter is a surname of a person connected with applicant.
The Benthin Factors:The Board then turned to the Benthin factors. Lexis evidence revealed 174 people in the USA with the surname Hechter, and applicant argued (before Integrated Embedded and Eximius Coffee) that the rareness of the surname should be dispositive. In the latter case, the Board observed that the statute does not exempt from the Section 2(e)(4) ban surnames that are uncommon. The question is whether the public will perceive the mark as a surname. Based on the Lexis results, media articles in the record, and applicant’s statements, the Board found that “the extent to which the purchasing public in the United States is exposed to ‘Hechter’ as a surname is not insignificant.”
Examining Attorney Claudia Garcia submitted dictionary evidence showing that “hechter” has no “ordinary language” or “common word” meaning in American English. Applicant pointed to the distinctiveness of DANIEL HECHTER as a mark, but the Board deemed that evidence to be irrelevant.
There was no evidence regarding whether HECHTER has the structure and pronunciation of a surname. And finally, the Board agreed with the Examining Attorney that the stylization of the applied-for mark was not sufficiently distinctive to create a commercial impression beyond the mark’s surname significance.
The Board concluded that the USPTO had established a prima facie case under Section 2(e)(4) that applicant failed to rebut, and so the Board affirmed the refusal.