Friday, April 08, 2005

TTAB Affirms 2(e)(4) Surname Refusal of "EBNER"

The Board wasted little time in affirming the PTO's Section 2(e)(4) refusal to register the mark EBNER (in the slightly stylized form shown in the photo) for surgical instruments, namely, curettes. In re Maxilon Laboratories, Inc., Serial No. 78248647 (March 9, 2005) [not citable].

The Examining Attorney made out a prima facie case by submitting 1,825 "Ebner" surname listings from the USFIND database, Internet printouts showing use of "Ebner" as a surname, and so-called negative dictionary evidence.

Maxilon offered the superficially attractive but ultimately futile argument that, of the 123 million listings in the USFIND database, the "Ebner" listings "constitute a mere 0.000014%." The Board noted that there is no "magic number" of directory listings required to establish a "prima facie surname case."

Maxilon also argued that "Ebner" has significance in the medical field, pointing to medical dictionary definitions for "Ebner's Glands" and "Ebner's Reticulum." The Board noted, however, that it is common for human anatomical parts, diseases, etc., to be named after people. In fact the two aforementioned anatomical parts were named after an individual with the surname Ebner.

Applicant further contended that "Ebner" is a "coined" German term, but the Board observed that there is no evidence of record that "a significant number of purchasers of applicant's type of goods would have sufficient familiarity with the German language that 'Ebner' would be perceived as a German term or variation of a German word."

Finally, the Board noted (without much emphasis) that one of Maxilon's founders is named Peter Ebner.

The Board apparently felt no need to consider my favorite 2(e)(4) factor: whether the mark has the "look and feel" of a surname. The mark EBNER reminds me of the former baseball player named Richie Hebner, who enjoyed a major league career spanning some eighteen years. I can still hear my baseball-loving British friend, a Pirates fan, shouting: "Good show, 'ebner, good show!"

Text ©John L. Welch 2005. All Rights Reserved.


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