Friday, October 27, 2006

"DR. BRANDT" Primarily Merely a Surname for Skin Care Products, Says TTAB

Would you associate the mark DR. BRANDT for skin care products and publications, with the late German Chancellor, Willy Brandt? I wouldn't, and neither would the Board. It affirmed a Section 2(e)(4) refusal to register, finding the mark to be primarily merely a surname. In re Cosmetic Dermatology, Inc., Serial No. 76606583 (September 27, 2006) [not citable].

Instead of the usual telephone database statistics, the PTO's evidence consisted of listings of various Internet search results, which revealed thousands of hits for "Brandt." However, the Board gave little weight to that evidence because it was "troubled by the description of the searched databases." The information was largely historical rather than current, and was not necessarily limited to the United States. The Examining Attorney did provide GOOGLE search results indicating that "at least six people have the surname 'Brandt.'" In addition, there were more than 9,000 hits for "Mr. Brandt." But, according to the Board, the evidence was "too cryptic to conclude that 'Brandt' is anything other than a rare surname."

Applicant submitted the consent of Dr. Fredric S. Brandt, and the fact that someone associated with Applicant has the involved surname was a factor supporting the PTO's position.

Applicant argued that the term BRANDT has other recognized meanings, and it pointed to a small town called Brandt, South Dakota, and a bird known as "Brandt's cormorant." More significantly, it included a dictionary entry that defined "Brandt" as Willy Brandt (1913-1992), "German political leader. He served as chancellor of West Germany (1969-1974) and won the 1971 Nobel Peace Prize for his efforts to reduce tension between the East and the West."

The Board found the town and bird evidence "insignificant," and as to Chancellor Brandt, it ruled that the evidence "does not show that the term 'Brandt' would be almost exclusively associated with Willy Brandt." But the existence of several dictionary definitions of "Brandt" as referring to the Chancellor led the Board to conclude that this factor "slightly favors applicant."

As to the final factor, the Board not surprisingly found that BRANDT has the "look and feel" of a surname. Nothing in the record suggested that it didn't. And the presence of "DR." in the mark does not significantly change the surname meaning of the mark.

The Board therefore concluded that DR. BRANDT is primarily merely a surname when used in connection with the involved goods.

TTABlog comment: Compare In re Pyro-Spectaculars, Inc., 63 USPQ2d 2022 (TTAB 2002), in which the Board reversed a Section 2(e)(4) refusal of the mark SOUSA for fireworks because the primary significance of the mark was not as a surname, but as a reference to John Philip Sousa, the March King. In the instant case, even though Willy Brandt may still be somewhat "renowned," there is no particular connection between him and skin care products like that between Sousa and fireworks.

Text Copyright John L. Welch 2006.


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