Tuesday, February 13, 2024

TTABlog Test: Is CANTU for Vehicle Tires Primarily Merely a Surname?

Invoking Section 2(e)(4), the USPTO refused registration of the proposed mark CANTU for “Tires; vehicle wheels; air chamber tire parts for vehicles, namely, inner tubes,” finding that CANTU is primarily merely a surname. The name CANTU appears 107,752 times in the search of the Lexis-Nexis Public Records database, but applicant asserted that, under the doctrine of foreign equivalents, CANTU means "sing" or "song" in English, overriding any surname significance of the term. How do you think this came out? In re CP Comerical S/A, Serial No. 90865025 (February 9, 2024) [not precedential] (Opinion by Judge Cheryl S. Goodman).

The Board considered the usual Section 2(e)(4) factors. There was no evidence that anyone associated with applicant has the surname CANTU, a neutral factor. Negative dictionary evidence showed that CANTU has no other recognized ordinary English meaning, a factor weighing against applicant.

Examining Attorney David Brundage asserted that CANTU has the structure and pronunciation of similar surnames (Canto, Canby, Banta, Cann, Santa, Canal, Canas, Canter, Gant and Sante). The Board found only one to be similar: CANTO. Applicant provided evidence that Portuguese surnames end in "es." [NB: the Board's opinion is not very clear in explaining applicant's argument on his point]. The Board concluded that "[c]oupled with the countering evidence from Applicant regarding common endings for surnames, the Examining Attorney’s evidence CANTO is a similar surname is insufficient to show how the public perceives the structure and sound of CANTU." The Board deemed this factor neutral. 

As mentioned above, the surname CANTU appears 107,752 times in the search of the Lexis-Nexis Public Records database. The ancestry.com website Ancestry website indicated there are 430,000 United States records relating to the CANTU surname.

As demonstrated by the database evidence and the Ancestry website evidence, CANTU is used as a surname across the United States, and the general public has been exposed to the surname. We find that members of the general public are likely to encounter CANTU as a surname, and this evidence supports the Examining Attorney’s refusal that the primary significance of CANTU is as a surname.

Turning to applicant's argument that the doctrine of equivalents should be applied, Applicant and the Examining Attorney submitted various conflicting translations from Google Translate. The Board rejected applicant's position.

We find there is no evidence in the record establishing that the doctrine of foreign equivalents applies in this case. There is no evidence in the record to support CANTU is the foreign equivalent of the English word “sing” in the Sicilian and Asturian languages. Attorney argument is not evidence. The record also does not clearly support a finding that the English word “sing” is translated as CANTU in the Portuguese language. Lastly, as the Examining Attorney points out, the Google Translate result submitted by Applicant does not show that the English word “sing” is translated as CANTU in the Corsican language. 

The Board therefore found the doctrine of foreign equivalents to be inapplicable, and it concluded that the primary significance of CANTU to the purchasing public is that of a surname.

Read comments and post your comment here.

TTABlogger comment: With that many Lexis/Nexis hits, you'd better have some pretty good evidence to get out from behind the 8-ball.

Text Copyright John L. Welch 2024.


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