The USPTO refused to register the proposed mark KEZAR for pharmaceuticals and chemicals for use in the manufacture of pharmaceuticals, finding the term to be primarily merely a surname under Section 2(e)(4). The examining attorney argued that KEZAR has no recognized meaning other than as a surname, while applicant contended that KEZAR has “geographic significance” because it is the name of a stadium in San Francisco. The examining attorney conceded that KEZAR is an uncommon surname, but pointed out that the San Francisco stadium was named after a prominent citizen named Mary Kezar. How do you think this appeal came out? In re Kezar Life Sciences Australia Pty Ltd, Serial No. 79256294 (August 27, 2020) [not precedential] (Opinion by Judge Thomas W. Wellington).
The examining attorney did not contest applicant’s assertion that no one with the surname KEZAR is connected with applicant. The Board noted, however, that this does not establish one way or the other whether KEZAR is primarily merely a surname.
Negative dictionary evidence was submitted by the examining attorney to show that KEZAR has no meaning other than as a surname. Applicant claimed that KEZAR has geographic significance, and that it chose the mark because it is “headquartered in an area of San Francisco near Kezar Stadium, which served as the home of the San Francisco 49ers from 1946 until 1970.” However, applicant provided no evidence showing Kezar used in reference to a geographic area. A single article dated 1989 referred to “Kezar Corner” but this was insufficient for purposes of proving the geographical significance of KEZAR. The Board therefore found that KEZAR has no non-surname meaning.
The examining attorney asserted that KEZAR has the structure and pronunciation of a surname, like Kazar, Kozar and Kyzar. The evidence, however, indicated that these surnames are not common, Lexis/Nexis showing 373 hits for Kazar, 1586 for Kozar, and 673 for Kyzar. These numbers “are not impressive and do very little, if anything,” to show that KEZAR has the structure and pronunciation of what the public will perceive as a surname. The Board therefore found that KEZAR does not have the structure and pronunciation of a surname.
Turning to the extent of exposure of KEZAR as a surname, the Office’s evidence uncovered 404 persons with the surname Kezar in the Lexis/Nexis database. “The number of persons with the surname indicates it is not a common surname; however, we point out that even rare surnames may be held primarily merely surnames if the primary significance conveyed to purchasers is that of surname.” See, e.g., Beds & Bars, 122 USPQ2d at 1551 (finding BELUSHI’S to be primarily merely a surname despite only five persons with that surname).
The examining attorney claimed that “Kezar is routinely presented to the general public as a surname, and regularly referenced as a surname,” but the evidence thereof fell short. It showed that that the stadium received its name from “prominent San Franciscan Mary Kezar,” who in 1922 left $100,000 to the city to build a memorial in honor of her mother and uncles. A dozen or so Lexis/Nexis excerpts referred to individuals named “Kezar,” but all of the excerpts were dated in the 1979-1991 time period.
Taking all of the evidence as a whole, we cannot conclude that there has been or currently is an appreciable amount of public exposure to KEZAR being used as a surname. The demonstrated number of individuals having this surname in the U.S., 404 persons, is extremely low. * * * Because KEZAR has no other recognized meaning and the record does not show sufficient exposure to KEZAR as a surname, we consider the possibility that consumers will view Applicant’s use of KEZAR as an arbitrary term in the context of the applied-for goods and services, pharmaceuticals and medical research.
Applicant submitted the results of a 48-respondent survey conducted during a lunch hour at Sears Tower in Chicago, but the Board agreed with the examining attorney that the survey methodology was flawed and the results were not sufficiently reliable to be probative.In conclusion, “[b]ecause the term KEZAR is so rarely used as a surname and there is very limited use of it in other contexts with surname significance,” the Board ruled that KEZAR will be not perceived by consumers of applicant’s products as being primarily a surname. And so the Board reversed the refusal to register.
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TTABlogger comment: How did you do? Harder to guess than in a Section 2(d) case, without knowing the evidence.
Text Copyright John L. Welch 2020.