Thursday, September 07, 2006

TTAB Affirms 2(e)(4) Refusal of "BRANIFF" as Primarily Merely a Surname for Air Transport

Finding that BRANIFF, once the name of the nation's fifth largest airline, has no consumer recognition other than as a surname, the Board affirmed a Section 2(e)(4) refusal to register that mark for "transportation of persons, property and mail by air." In re 200 Kelsey Associates, LLC, Serial No. 78499928 (August 10, 2006) [not citable].

Examining Attorney Sara N. Thomas submitted 296 hits from the USFIND database, for individuals scattered around the country, and an excerpt from the "namestatistics" database revealed 1250 Braniffs in the United States. The Board therefore found that the surname BRANIFF is "somewhat rare," but it quickly noted that even a somewhat rare surname may still fall within Section 2(e)(4).

There was no evidence that anyone connected with Applicant is named Braniff, so that factor was neutral.

As to any other recognized meaning of Braniff, the Examining Attorney provided "negative" dictionary evidence: i.e., an excerpt from the Merriam-Webster Online Dictionary that did not list the word "Braniff." Applicant submitted Internet webpages regarding past use of the term BRANIFF for the airline that shut down in 1982, and it argued that BRANIFF likely still has meaning and significance to consumers as an airline. However, the Board noted the lack of evidence that the term BRANIFF now has any recognition other than as a surname.

Finally, the Board concluded that BRANIFF has the "look and feel" of a surname. Although recognizing that this is a subjective determination, the Board pointed to the fact that BRANIFF, as the Examining Attorney asserted, is "not a term that is composed of other terms or portions of terms, such as common prefixes and suffixes that convey a particular meaning."

And so the Board affirmed the surname refusal.

TTABlog comment: This particular applicant has filed dozens of applications to register once well-known trademarks: e.g., CHLORODENT, SKY CHIEF, and MUM. Recently it lost (on summary judgment) an opposition to its application to register the mark CHEMICAL BANK for banking services. Chemical Finance Corp. v. 200 Kelsey Associates, LLC, Opposition No. 91163169 (March 6, 2006) [not citable].

Text Copyright John L. Welch 2006.


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