Breaking its string of Section 2(e)(4) affirmances, the TTAB reversed a refusal to register the mark VEASY for “plant and flower seeds; live plants and flowers; live tropical plants, orchids and vandas, being orchids,” finding that the USPTO had failed to carry its burden to prove that the mark is primarily merely a surname. The Board considered the usual 2(e)(4) factors and noted particularly that there are “no contextual clues indicating the surname significance of VEASY.” In re Suphachatwong Innovation Co., Ltd., Serial No. 86516441 (November 3, 2016) [not precedential].
Among the factors to be considered in determining the surname significance of a mark are the following (citing Eximius Coffee,120 USPQ2d at 1278) [The ALDECOA case, TTABlogged here].
- whether the term is the surname of anyone connected with the applicant;
- whether the term has any recognized meaning other than as a surname;
- whether evidence shows that the term has the structure and pronunciation of a surname;
- whether there is contextual use related to surname significance; and
- whether the evidence shows use of the term as a surname is rare.
The Board, relying on data from the 2000 Census, concluded that 333 individuals have the surname VEASY, and therefor that VEASY “by any standard, is a very rare surname.” Ninety-six LexisNexis articles referenced persons with the surname VEASY (including a nurse, a real estate agent, a doctor and a sales consultant). The Board agreed with applicant that this evidence does not “reflect the broad exposure that would place a rarely encountered surname more frequently in the public eye.” Eximius at 1281. (Compare In re Gregory, finding ROGAN to be primarily merely a surname in light of broad public exposure to former Congressman and USPTO Director James Rogan).
There was no evidence that anyone associated with applicant has the surname VEASY. Nor were there any “contextual clues” that might indicate to the consumer that VEASY is a surname. (Unlike In re Darty & Fils, where DARTY ET FILS translates as “Darty & Sons,” or Eximius, where the Aldecoa family ran the business and promoted its products as “A Family Coffee,” or Integrated Imbedded, where applicant’s website discussed the credentials of, and enabled visitors to contact applicant’s “Namesake” and Chief Technical Officer Thomas Barr).
The Examining Attorney argued that the frequency of the surname VEASEY should also be taken into account, but although the Board agreed that the surname VEASEY is similar, there was no direct evidence to establish how consumers understand the word VEASEY.
Considering the record evidence, the Board concluded:
the mark does not identify anyone associated with Applicant; that there are no contextual clues indicating the surname significance of VEASY; that the mark has no defined ordinary language meaning; that the evidence of record is insufficient to show a structure and pronunciation similar to another single surname that would render it more likely to be regarded as a surname than as a fanciful mark; and that use of VEASY as a surname by others, rare to begin with, has not been sufficiently exposed to the purchasing public that it is likely to be recognized as primarily merely a surname. In sum, we cannot say that the primary significance of VEASY to the purchasing public is that of a surname.