Wednesday, September 13, 2017

TTAB Test: Is BRASSERIE KUNZ Primarily Merely a Surname?

The USPTO refused to register the mark BRASSERIE KUNZ for "restaurant services, namely, providing of food and beverages for consumption on and off the premises" [BRASSERIE disclaimed], finding it to be primarily merely a surname and therefore barred by Section 2(e)(4). Examining Attorney Ingrid C. Eulin submitted evidence that Applicant is affiliated with the well-known chef, Gray Kunz. Applicant argued that KUNZ has a non-surname meaning when translated from the German. How do you think this came out? In re Kunz Management LLC, Serial No. 86773122 [not precedential] (Opinion by Judge Lorelei Ritchie).

Gray Kunz

The USPTO's evidence indicated that about 7,500 people in the USA have the surname KUNZ. A search on revealed 12,237 exact matches. Applicant did not claim that KUNZ is a rare surname, and the Board agreed.

Significantly, well-known chef Gray Kunz is affiliated with applicant. It appears that he formed Kunz Management LLC in 2006. Applicant did not deny the affiliation.

Applicant asserted that there is an ordinary meaning of Kunz - i.e., "Konrad" - and it submitted a link to a website. [Isn't Konrad a surname, too? - ed]. However, merely providing a website link is insufficient to make the material of record, and so the Board declined to consider whatever material may be found at the link.

Relying on the Board's Isabelle Fiore decision, applicant also submitted a German-English dictionary entry indicating that the phrase "Hinz and Kunz" is translated as "every Tom, Dick and Harry," and the term "von Hinz zu Kunz" is translated as "from pillar to post; from one place to another."  In Fiore, the mark FIORE was found not to be primarily a surname. There, the Board considered evidence that the mark has a known meaning in Italian - as "flower." Here, however, the translations offered by applicant are not direct translations of KUNZ or BRASSERIE KUNZ. There is no indication of what KUNZ means by itself. In short there was no evidence that consumers would understand KUNZ as anything other than primarily merely a surname.

Considering the mark as a whole, the Board noted that BRASSERIE is generic for, or at least merely descriptive of, restaurant services. Nothing about the combination of BRASSERIE and KUNZ changes the meaning of the component terms.

Finally, the examining attorney submitted evidence showing that it is common for restaurants to be named after the owner or chef. In fact, the addition of BRASSERIE may enhance the perception of KUNZ as a surname.

The Board therefore found that BRASSERIE KUNZ would be perceived as primarily merely a surname, and it affirmed the refusal.

Read comments and post your comment here.

TTABlog comment: Under more recent case law, the fact that someone named KUNZ is associated with applicant pretty much sealed the deal, although this opinion does not emphasize that aspect. BTW: suppose KUNZ did have a direct translation into English. Wouldn't KUNZ still be perceived as a surname by the 98% of Americans who don't speak German?

Text Copyright John L. Welch 2017.


At 9:56 AM, Anonymous Anonymous said...

Isn't Konrad a first name and not merely a surname? Conrad Hilton hotels has a sub-brand that is Conrad, as I recall, so again it is not merely a surname.

At 10:34 AM, Anonymous Anonymous said...

But under current doctrine of foreign equivalents practice, wouldn't it be assumed that the 98% who don't speak German would still stop and translate?


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