WYHA? TTAB Affirms Section 2(e)(4) Surname Refusal of "WEIS" for Frozen Dairy Products
The Board not surprisingly affirmed a Section 2(e)(4) refusal to register the mark WEIS in the design form shown below, for frozen dairy products. More than four thousand household listings for "Weis," coupled with the fame (believe it or not) of recently deposed Notre Dame football coach Charlie Weis, convinced the Board that Weis is not a rare surname. Rumbling through the Benthin factors, the Board found that Examining Attorney Daniel S. Brody had made a prima facie case under 2(e)(4), which Applicant failed to rebut. In re Weis Australia Pty Ltd, Serial No. 79047172 (January 20, 2010) [not precedential].
The Board repeated its usual mantra that "there is no minimum number of listings needed to prove that a mark is primarily merely a surname." Here, the number of residential listings were enough to sway the Board that Weis "is not an especially rare surname."
Citing In re Gregory, the Board noted that "large numbers of individuals in the United States would be exposed to the name of the Notre Dame head football coach in sports programming and news." [Not any more - ed.] In short, according to the Board, "WEIS is not rare [how about medium rare? - ed.] when viewed as a name repeated in the media in terms of public recognition." [For my criticism of Gregory see part IV of this article - ed.].
No one associated with Applicant Weis has the surname Weis. [Really? Where did the name come from, I wonder - ed.]. As to other recognized meanings, the Examining Attorney submitted negative dictionary evidence [I always think of "negative dictionary evidence" as white print on black pages - ed.] showing no entries for "Weis."
Applicant contended that WEIS has other recognized meanings because "it is used as an acronym in different contexts." Citing something called the Acronym Attic, it provided several examples, and it also pointed to a radio station called "WEIS 990 AM radio" (the voice of Cherokee County, Alabama).
The Board noted that six of the seven acronym listings were "unverified," and it was not clear that the seventh ["World Event Interaction Survey"] is "well recognized to potential consumers of applicant's goods." It was simply not persuaded that "WEIS primarily will be viewed or understood by purchasers as an acronym or radio station call letters rather than for its surname significance"
Turning to the fourth factor, the Board, with another nod to Charlie Weis, found that WEIS has the look and feel of a surname.
Finally, the design portion of the subject mark is "certainly not fancy, and unlike in In re Benthin, supra [highly stylized oval design], the carrier or background design is not so unusual or distinctive to create a non-surname significance."
And so the Board affirmed the refusal.
TTABlog comment: Well, would you have appealed?
BTW, when I hear the name "Weis," I think of former White Sox second baseman Al Weis, who later achieved some glory with the 1969 World Series Champion New York Mets.
Text Copyright John L. Welch 2010.