TTAB Reverses Surname Refusal of "FRESCH" for Frozen Pizza
The PTO took the wrong tack in its refusal to register the mark FRESCH for frozen pizza and appetizers. Rather than base the refusal on mere descriptiveness ("fresh"), the Examining Attorney maintained that "Fresch" is primarily merely a surname under Section 2(e)(4). The Board disagreed. In re Schwan's IP LLC, Serial No. 78527306 (April 25, 2007) [not precedential].
Judge Bergsman, in his trademark style, went through the evidence in some detail, and found the record "devoid of any probative evidence regarding any meaning for FRESCH."
The PTO submitted a printout from the LEXIS/NEXIS database showing 131 residential listings of "Fresch" as a surname, and excerpts from 104 "representative" stories in which the word appeared as a surname. With her brief, the Examining Attorney provided several pages from online German-English dictionaries, but the Board found this evidence objectionable both because of untimeliness and because online dictionary evidence is not admissible unless accompanied by some proof that the source is "readily verifiable, reliable, and available in print publications."
Applicant Schwan's asserted that, inter alia, Fresch is a location in Austria, Fresch Hazel is a place in Belgium, the word "fresch" means "fresh" in Mennonite Low German, and "fresch" may be a Latin word. Various foreign website pages submitted by Schwan's were of little evidentiary worth because they were in German, or referred to a restaurant outside the USA, or were not likely accessed by American internet users, or were simply incomprehensible.
Turning to the Section 2(e)(4) analysis, the Board found that FRESCH is not a common surname. The record lacked evidence that anyone associated with Applicant Schwan's is named "Fresch" (a neutral factor). And as mentioned, there was no probative evidence that "fresch" has any meaning [the geographical references being too obscure and the Mennonite dictionary entry being of little value in light of the "handful of persons in the United States who speak Plautdietsch"].
As to the subjective factor of "look and feel," the Board noted that there was no evidence that "___sch" is a common or recognized structure or format for a surname. [TTABlog comment: BUSCH beer?]. Instead, the Board observed that FRESCH is "the phonetic equivalent of the descriptive word "Fresh," and that has a profound effect on the way consumers will perceive the word FRESCH."
"Because 'Fresch' does not have the appearance of a surname, and because the word 'fresh' describes a desirable quality of food or ingredients in food, consumers would be more likely to recognize 'Fresch,' when used in connection with the food items listed in applicant's identification of goods, as a stylization or variation of the word 'fresh,' rather than as a surname."
The Board therefore reversed the surname refusal.
TTABlog comment: While the Board may have reached the right result here, where was the evidence to support its finding that consumers would be more likely to recognize "Fresch" as a variation of "fresh"? We may think that to be the case, but wasn't it up to Applicant to prove it? Didn't the PTO make out a prima facie case under 2(e)(4) that shifted the burden to the Applicant?
Text Copyright John L. Welch 2007.