Aulbach Lizenz AG

Trademark Trial and Appeal Board

Nov 7, 2016

No. 79156860 (T.T.A.B. Nov. 7, 2016)

This Opinion is not a
Precedent of the TTAB

Mailed: November 7, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Aulbach Lizenz AG
_____

Serial No. 79156860
_____

James R. Menker of Holley & Menker PA for Aulbach Lizenz AG

Claudia Garcia, Trademark Examining Attorney, Law Office 111,1
(Robert L. Lorenzo, Managing Attorney).
_____

Before Cataldo, Wolfson, and Larkin,
Administrative Trademark Judges.

Opinion by Larkin, Administrative Trademark Judge:
Aulbach Lizenz AG (“Applicant”) seeks registration on the Principal Register of
the mark shown below

for
leather and imitation leather; moleskin being imitation leather;
goods made of leather and imitation leather, namely backpacks,

1 The involved application was originally examined by a different Trademark Examining
Attorney, and subsequently was reassigned to the Trademark Examining Attorney whose
name appears above for preparation of the United States Patent and Trademark Office’s
appeal brief. We will refer to them interchangeably as the “Examining Attorney.”
Serial No. 79156860
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shopping bags, beach bags, traveling bags, garment bags for
travel, sports bags, bags for campers, handbags, wheeled bags,
school bags, traveling sets being luggage, suitcases; leather or
leather-board boxes; trunks being luggage; leather straps; key
cases being leather goods; wallets; suitcases, namely, carrying
cases; card cases, namely credit card cases, calling card cases;
handbags leather being goods; umbrellas; non-fitted vanity cases
sold empty, in International Class 18, and
clothing, namely, tops, bottoms, pants, shirts, skirts, dresses,
blouses, shorts, tights, pullovers, jackets, coats, vests, sweaters,
gloves, socks, rainwear and neckwear; footwear; headgear,
namely hats, caps; bandanas being neckerchiefs; headbands;
stockings; hosiery; caps being bonnets; mufflers; hoods; belts;
dressing gowns being robes; hats; socks; bedroom slippers; slips
being underwear; suits; clothing of leather, namely, tops,
bottoms, pants, shirts, skirts, dresses, blouses, shorts, tights,
pullovers, jackets, coats, vests, sweaters, gloves, socks, rainwear
and neckwear; headwear; clothing of imitation leather, namely,
tops, bottoms, pants, shirts, skirts, dresses, blouses, shorts,
tights, pullovers, jackets, coats, vests, sweaters, gloves, socks,
rainwear and neckwear; outerclothing, namely jackets, coats;
underclothing being underwear; scarves; women's lingerie; furs,
namely hats, stoles, muffs, coats; girdles being underwear; vests;
wearable garments, namely tops, bottoms, pants, shirts, skirts,
dresses, blouses, shorts, tights, pullovers, jackets, coats, vests,
sweaters, gloves, socks, rainwear and neckwear; raincoats; skirts;
petticoats; teddies being undergarments; coats; mittens; trousers;
parkas; pullovers; dresses; saris; cocktail dresses; aprons;
knitwear clothing, namely sweaters; uniforms; jackets; veils; tee-
shirts; shorts; bermuda shorts; blousons; gabardines; clothing,
namely pants, raincoats; overcoats; trench coats; pelerines; cross-
over tops; shirts; cardigans; sweaters; sashes for wear; gloves;
tights; drawers, including bathing suits; pajamas; nightwear;
nightgowns; dressing gowns; bathing suits and beach suits,
sportswear not for diving, namely sports bras, sports jerseys,
sports tops, sports leggings; clothing of fur, namely hats, stoles,
muffs, coats; footwear other than for orthopedic purposes, namely
beach shoes; sports and ski footwear; boots; half-boots; esparto
shoes or sandals; sandals; slippers; caps; berets; caps, including
bathing caps; turbans; neckties, in International Class 25.2

2 Application Serial No. 79156860 was filed on August 12, 2014 and seeks extension of the
protection of International Registration No. 1227390 to the United States under Section 66
Serial No. 79156860
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The Examining Attorney refused registration of Applicant’s mark on the ground
that it is “primarily merely a surname” within the meaning of Section 2(e)(4) of the
Trademark Act. After the Examining Attorney made the refusal final, Applicant
timely appealed to the Board. The case is fully briefed. We affirm the refusal to
register.
I. Prosecution History and Record on Appeal
Prosecution History
On December 23, 2014, the Examining Attorney issued an Office Action refusing
registration under Section 2(e)(4). On January 28, 2015, Applicant responded by
making a claim of acquired distinctiveness under Section 2(f) of the Trademark Act
on the basis of ownership of Registrations Nos. 3335525, 4016190, and 4033598. On
February 18, 2015, the Examining Attorney issued a second Office Action rejecting
Applicant’s claim of acquired distinctiveness and continuing the Section 2(e)(4)
refusal.3 On August 18, 2015, Applicant responded to the continued Section 2(e)(4)
refusal on the merits. On September 10, 2015, the Examining Attorney made final
the refusal of registration. Applicant appealed to the Board on March 2, 2016.

of the Trademark Act. The mark is described in the application as consisting of “the navy
blue stylized wording ‘HECHTER’.” The color navy blue is claimed as a feature of the mark.
3 When Applicant made its Section 2(f) claim, Applicant did not expressly reserve the right
to argue, in the alternative, that its mark was not primarily merely a surname. See TMEP
Section 1202.02(c); In re Thomas Nelson, Inc., 97 USPQ2d 1712 (TTAB 2011). In any event,
the question of whether Applicant’s mark has acquired distinctiveness under Section 2(f) is
not before us on appeal.
Serial No. 79156860
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Record on Appeal
The evidence of record consists of:
● A printout from a search of the Lexis Public Records database for persons in
the United States with the last name “Hechter” indicating that there were 174
“hits” and listing the first 10 of the 174 names alphabetically, together with
addresses and telephone numbers (attachment to Office Action dated December
23, 2014);
● A printout from the Collins American English Dictionary showing no entry for
the word “hechter” (attachment to Office Action dated September 9, 2015);
● A printout of a Wikipedia entry about French fashion designer Daniel Hechter
(attachment to Office Action dated September 9, 2015);
● A printout from Applicant’s website identifying Daniel Hechter as a fashion
designer and the creator of the Daniel Hechter clothing line (attachment to Office
Action dated September 9, 2015);
● A printout of Google search results for “Daniel Hechter,” including truncated
excerpts of certain of the results, separately listed below (attachment to Office
Action dated September 9, 2015);4

4 The truncated excerpts show the use of the names at issue and little else. Although both
Applicant and the Examining Attorney discussed them, we find them to be of little assistance
in the analysis of the issues on this appeal. See In re Bayer Aktiengesellschaft, 488 F.3d 960,
82 USPQ2d 1828, 1833 (Fed. Cir. 2007) (truncated results from search engines are entitled
to little weight).
Serial No. 79156860
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● A truncated excerpt from a Warontherocks.com article entitled Empire of
Confusion found at http://warontherocks.com/2015/09/empire-of-confusion/ that
mentions a person named Michael Hechter (attachment to Office Action dated
September 9, 2015);
● A truncated excerpt from an article in BlouinArtInfo entitled Nicolas Cage’s
101 is One of Two Bugattis Offered Bonhams’, found at
http://www.blouinartinfo.com/news/story/1228680/nicolas-cages-101-is-oneof-
two-bugattis-offered-bonhams that mentions the fashion designer Daniel Hechter
(attachment to Office Action dated September 9, 2015);
● A truncated excerpt from an article in the Financial Express entitled HiLITE
Mall Enters Limelight, found at
http://www.financialexpress.com/article/companies/hilitemall-enters-
limelight/123215 that lists “Daniel Hechter” as a major brand associated with
HiLITE Mall (attachment to Office Action dated September 9, 2015);
● A truncated excerpt from PRWeb found at
http://ww1.prweb.com/prfiles/2015/08/18/12904315/pr-8-18-15.pdf referencing
the pages of “Vogue, GQ, Mademoiselle, and Daniel Hechter” (attachment to
Office Action dated September 9, 2015);
● An excerpt from an article in the Times of San Diego, found at
http://timesofsandiego.com/business/2015/09/08/banker-sentenced-to-3-years-for-
Serial No. 79156860
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bribery-in-mortgage-scheme/, that mentions a person named Israel Hechter
(attachment to Office Action dated September 9, 2015); and
● An excerpt from the Boston Globe found at
https://www.bostonglobe.com/metro/2014/04/19/mit-website-reports-
deathmedical-student/zlhNLepFJ4twPMX168oI0O/story.html, that mentions a
person named Eliana Hechter.
II. Analysis
Section 2(e)(4) of the Trademark Act prohibits registration on the Principal
Register of a mark that is “primarily merely a surname,” absent a showing of acquired
distinctiveness under Section 2(f) of the Act. The Patent and Trademark Office bears
the burden of establishing a prima facie case that a mark falls within this prohibition.
In re Etablissments Darty et Fils, 759 F.2d 15, 225 USPQ 652, 653 (Fed. Cir. 1985). If
the Patent and Trademark Office establishes a prima facie case, the burden shifts to
the applicant to rebut that case. Id. On appeal, we must weigh all of the evidence to
determine whether the record as a whole supports the refusal. In re Sava Research
Corp., 32 USPQ2d 1380, 1381 (TTAB 1994).
In two recent precedential decisions, In re Integrated Embedded, ___ USPQ2d
____, Serial No. 86140341 (TTAB September 27, 2016) and In re Eximius Coffee, LLC,
120 USPQ2d 1276 (TTAB 2016), the Board reiterated that a “term is primarily merely
a surname if, when viewed in relation to the goods or services for which registration
is sought, its primary significance to the purchasing public is that of a surname.”
Serial No. 79156860
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Eximius Coffee, 120 USPQ2d at 1277 (citing In re United Distillers plc, 56 USPQ2d
1220 (TTAB 2000) and In re Hutchinson Tech. Inc., 852 F.2d 552, 7 USPQ2d 1490,
1492 (Fed. Cir. 1988)). “This expression of the test restates the rule set forth in In re
Kahan & Weisz Jewelry Mfg. Corp., 508 F.2d 831, 184 USPQ 421, 422 (CCPA 1975)
. . . and In re Etablissments Darty et Fils, 759 F.2d 15, 225 USPQ 652, 653 (Fed. Cir.
1985).” Eximius Coffee, 120 USPQ2d at 1277-78 (internal quotation omitted).
Whether the primary significance of an applied-for mark is merely that of a surname
is a question of fact, see Darty, 225 USPQ at 653-54, and there is no rule as to the
kind or amount of evidence necessary to show that a given mark would be perceived
as primarily merely a surname. Eximius Coffee, 120 USPQ2d at 1278. “The entire
record is examined to determine the primary significance of a term.” Id. If there is
any doubt as to the surname significance of a mark, the Board is “inclined to resolve
such doubts in favor of applicant.” In re Benthin Mgmt. GmbH, 37 USPQ2d 1332,
1334 (TTAB 1995).
In Eximius Coffee, the Board noted that in “Darty, the Federal Circuit considered
several factors in determining whether the purchasing public would perceive a
proposed mark as primarily merely a surname, including: whether the applicant
adopted a principal’s name and used it in a way that revealed its surname
significance; whether the term had a nonsurname ‘ordinary language’ meaning; and
the extent to which the term was used by others as a surname.” Eximius Coffee, 120
Serial No. 79156860
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USPQ2d at 1278.5 To the list of examples of inquiries or “factors” articulated in Darty,
the Board added two additional examples of inquiry in Benthin, 37 USPQ2d at 1333-
34: (iv) whether the term has the “structure and pronunciation” of a surname, and (v)
whether the stylization of lettering is distinctive enough “to cause the mark not to be
perceived as primarily merely a surname.” We stress that these inquiries or “factors”
are not exclusive nor presented in order of importance. Integrated Embedded, Serial
No. 86140341, 13 TTABVUE at 3, n.4.6 Any of these inquiries “and any other relevant
circumstances may shape the analysis in a particular case.” Id.
We review the evidence of record that is directed to these matters being mindful
of the admonitions in Eximius Coffee and Integrated Embedded not to apply any
particular inquiry or factors mechanically or invariably give them equal weight, and
we will consider the evidence against the backdrop of Applicant’s primary argument
on appeal “that the Examining Attorney has failed to establish a prima facie case
that HECHTER is primarily merely a surname.” 4 TTABVUE at 6 (Appeal Brief).
The Connection of a Person With the Surname Hechter to Applicant
Applicant concedes that there is a person with the surname Hechter who is
connected to Applicant and acknowledges that “the evidence of record contains

5 A prima facie case of surname significance was established in Darty “by evidence that: (i)
DARTY [was] the surname of the president of appellant; (ii) DARTY appear[ed] as a surname
in a number of telephone directories across the nation; and (iii) DARTY [did] not appear in
dictionaries as a French or English word.” Darty, 225 USPQ at 653.
6 The Examining Attorney and Applicant confined their arguments to the so-called Benthin
factors, which reflected the state of the law at the time of the briefing in this case prior to the
Board’s decisions in Eximius Coffee and Integrated Embedded.
Serial No. 79156860
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several references to retired French fashion designer Daniel Hechter.” 4 TTABVUE
at 7. Applicant further states that it “has claimed ownership of several prior
registrations for marks comprised in part of the name DANIEL HECHTER and in
each case the consent of Daniel Hechter was made of record. The evidence of record
referring to Daniel Hechter are (sic), in fact, references to this same person.” Id.7
Applicant concedes that the affiliation of Daniel Hechter with Applicant “tends to
favor upholding the instant refusal.” 4 TTABVUE at 9.
A page from Applicant’s website made of record by the Examining Attorney
substantiated Applicant’s concession that there is someone connected with Applicant
with the surname Hechter. It is reproduced below:

7 We note that neither the registration certificates upon which Applicant’s claim of acquired
distinctiveness under Section 2(f) was based, nor the consents of Mr. Hechter themselves, are
of record.
Serial No. 79156860
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Applicant described this page as “a print-out from Applicant’s website announcing
the 50th Anniversary of the brand DANIEL HECHTER . . .” 4 TTABVUE at 7. Daniel
Hechter is identified on this page as being the person behind Applicant’s business.
The webpage is in English and has a link enabling viewers to locate stores. We infer
from these facts that the page and the name “Daniel Hechter” were exposed to
consumers of Applicant’s goods in the United States, which in turn exposed the
surname Hechter to consumers of Applicant’s goods in the United States.
In Eximius Coffee and Integrated Embedded, the Board found that website
evidence supported findings that the applicants’ respective marks ALDECOA and
BARR GROUP consisted of or contained the surnames of persons associated with the
applicants. Eximius Coffee, 120 USPQ2d at 1278-79 (pages from the applicant’s
website discussing the historical and current involvement of members of the Aldecoa
family in the applicant’s business); Integrated Embedded, Serial No. 86140341, 13
TTABVUE at 3-5 (pages from the applicant’s website showing, discussing the
credentials of, and enabling visitors to contact, applicant’s “Namesake” and Chief
Technical Officer Thomas Barr). The website evidence here is less detailed, extensive,
and current than the website evidence in Eximius Coffee and Integrated Embedded,8
but “no precedential value can be given to the quantum of evidence apparently
accepted in a prior case,” Darty, 225 USPQ at 653, and we find that the website

8 The page here seems to be from Applicant’s website in 2012, as it refers to a company
anniversary that occurred in 2012, bears a 2012 copyright notice, and contains a link to a
“SpringSummer 2012” page.
Serial No. 79156860
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evidence here supports a finding that Hechter is a surname, and specifically the
surname of a person connected to Applicant.
The Extent to Which Hechter Appears as a Surname in Telephone
Directories and Other Materials, and Its Rareness as a Surname
The Examining Attorney made of record a portion of the results of a search of the
Lexis Public Records database for persons in the United States with the surname
Hechter. It is reproduced below:

The Lexis evidence shows that there are 174 people in the United States with the
surname Hechter. The Examining Attorney also made of record three stories from
online publications about specific persons in the United States with the surname
Hechter, the results of a Google search about Daniel Hechter, two media articles
Serial No. 79156860
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referencing Daniel Hechter, a Wikipedia page about Daniel Hechter, and pages
identifying “Daniel Hechter” as a clothing brand and as a publication together with
other publications, namely Vogue, GQ, and Mademoiselle. We find that the evidence
from Applicant’s website, as well as the Internet evidence discussed below, supports
a finding that Hechter is a surname, and specifically the surname of a person
connected to Applicant.
Applicant attacks this evidence on two alternative grounds. First, Applicant
challenges the probative value of the evidence per se. Second, Applicant argues that
if the Lexis evidence, media articles, and other Internet evidence show that there are
only 174 people in the United States with the surname Hechter, the Board must give
this fact “more weight than the others because of the extreme rareness of the
surname,” 4 TTABVUE at 9, and that “the rarity of a surname is of particular
importance in the weighing of the Benthin factors.” 7 TTABVUE at 7. We address
these grounds in turn.
With respect to the probative value of the Lexis results, Applicant first notes that
while the Examining Attorney claimed that the Lexis search identified 174 people in
the United States with the surname Hechter, only the first 10, in alphabetical order,
were identified in the page made of record, preventing Applicant from examining the
accuracy of the Examining Attorney’s claim or sorting out possible duplicates. 4
TTABVUE at 6; 7 TTABVUE at 4-5. The Examining Attorney responds that “it is
common practice for examining attorney’s (sic) to attach as evidence only the first
page of the Lexis Public Records Database” due to the limited resources available to
Serial No. 79156860
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the Patent and Trademark Office when examining applications. 6 TTABVUE at 10
(Examiner Brief).
Examining attorneys appear to routinely submit only small portions of the results
of database searches in surname cases. See, e.g., Eximius Coffee, 120 USPQ2d at 1280
(last page of search containing approximately 950 total listings made of record);
Integrated Embedded, Serial No. 86140341, 13 TTABVUE at 6 (first 100 out of more
than 13,000 listings made of record). Particularly in the case of an uncommon or rare
surname, this practice may affect the usefulness of search evidence depending upon
the specific facts of a case. Compare Eximius Coffee, 120 USPQ2d at 1280 (last page
of search, which included two sets of duplicative entries, had limited probative value,
but still tended to show that Aldecoa was a rare surname) with Integrated Embedded,
Serial No. 86140341, 13 TTABVUE at 6 (first 100 listings accepted as sufficient
sampling of search results showing that more than 13,000 Americans had the
surname Barr). We find here that while the better practice would be to submit more
of the results, or all of them if practicable, in a search that reveals such small
numbers, the single page from the search, which lists 10 people with the surname
Hechter with addresses in California, Texas, Florida, Minnesota, and Nevada, is a
sufficient sampling of the overall search results to show that individuals with the
surname reside throughout the United States.9 See Integrated Embedded, Serial No.

9 Applicant argues that the fact that two of the persons listed on the page are identified only
by their first initials made it unclear “whether these entries are duplicates of any other
entries on the list with given names starting with the same letter.” 4 TTABVUE at 6. Because
addresses and telephone numbers are also listed, it is highly unlikely that the person
identified as “Hechter, A.” in Palm Springs, California is the same person as the others on
Serial No. 79156860
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86140341, 13 TTABVUE at 6 (listing of 100 persons with the surname Barr included
addresses in 28 states and the District of Columbia). As in Eximius Coffee, the Lexis
search evidence here “tends to show that [HECHTER] is a surname, but one that is
rarely encountered by the consuming public.” Eximius Coffee, 120 USPQ2d at 1280.
See also Benthin, 37 USPQ2d at 1333 (slightly over 100 listings of surname Benthin
in PHONEDISC U.S.A. database probative of finding that Benthin was a surname in
United States).
Applicant’s attack on the probative value of the media articles is that there is no
evidence that the three persons named Eliana Hechter, Israel Hechter, and Michael
Hechter who are mentioned in the media articles “have received any notoriety in the
United States.” 4 TTABVUE at 6. The possible lack of notoriety of these people goes
primarily to the issue of the extent to which United States consumers may have been
exposed to Hechter as a surname, not to whether Hechter is a surname at all.10 We
reject the Examining Attorney’s claim that the persons discussed in the media stories
“have received notoriety in the United States” because of the nature of the stories and
the publications in which they appeared, 6 TTABVUE at 12, but the stories “are the
type of evidence that can be probative and aid analysis because they show public

the list whose first names also begin with the letter “A” and who have different addresses
and telephone numbers. Cf. Eximius Coffee, 120 USPQ2d at 1280 (two sets of duplicative
entries on single page made of record).
10 In In re Gregory, 70 USPQ2d 1792, 1794-95 (TTAB 2004), the case cited by Applicant in
support of this argument, the Board found that “Rogan” was not a rare surname, even though
it was the surname of only 1,100 people in the United States, because those people included
James Rogan, who had achieved a measure of notoriety.
Serial No. 79156860
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exposure to [HECHTER] used as a surname.” Eximius Coffee, 120 USPQ2d at 1281.
While they “do not reflect the broad exposure that would place a rarely encountered
surname more frequently in the public eye,” id., they do corroborate the Lexis search
results in showing that Hechter is a surname in the United States.
With respect to the other Internet evidence, Applicant argues that this evidence
is not relevant to the United States and is “unlikely to be encountered by an
appreciable number of people in the United States.” 4 TTABVUE at 8. We agree with
Applicant that the Wikipedia page about Daniel Hechter and the Internet materials,
other than Applicant’s website and the media stories about Americans named
Hechter, have little probative value on the issue of the primary significance of
HECHTER to consumers in the United States in the absence of evidence of the extent
of their exposure to Americans.
Turning next to Applicant’s alternative argument regarding rareness, the
Examining Attorney properly concedes that the record shows that HECTHER is a
“relatively rare surname.” 6 TTABVUE at 11. Applicant cites four non-precedential
decisions, In re Bovis, Serial No. 77502609 (TTAB September 28, 2010), In re Hall
Wines, LLC, Serial No. 78926151 (TTAB February 10, 2009), In re Okamoto Corp.,
Serial No. 857394429 (February 6, 2015), and In re SieMatic Schweiz GmbH, Serial
No. 79033882 (August 14, 2009), 4 TTABVUE at 9; 7 TTABVUE at 6, n.9, in support
of its claim that Hechter is such a rare surname in the United States that its rareness
should be the dispositive factor on the issue of whether it is primarily merely a
surname.
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In Eximius Coffee, the Board held that “[w]hile the fact that ALDECOA appears
to be a relatively rare surname weighs in Applicant’s favor, it does not end the
inquiry. Section 2(e)(4) makes no distinction between rare and commonplace
surnames . . . and even a rare surname is unregistrable if its primary significance to
purchasers is a surname.” Eximius Coffee, 120 USPQ2d at 1281 (citations omitted).
“The statute does not exempt wholesale from this prohibition those surnames shared
only by a few, or provide that the purpose of the prohibition is to protect others’ rights
to use their surnames except from those with uncommon surnames.” Id. at 1282. In
other words, the degree of rareness of a surname alone can never make a surname
eligible for registration on the Principal Register if the record, as a whole, shows that
the relevant purchasing public “is more likely to perceive [the mark] as only a
surname than as something else.” Id. at 1283. Although we agree that Hechter is a
rare surname, we find, on the basis of the Lexis search results and the media articles
in the record and Applicant’s related statements, that the extent to which the
purchasing public in the United States has been exposed to “Hechter” as a surname
is not insignificant.
Non-Surname Meanings for “Hechter”
“Even though a mark may have been adopted because it is the surname of one
connected with the business, it may not be primarily merely a surname under the
statute because it is also a word having ordinary language meaning. The language
meaning is likely to be the primary meaning to the public . . . On the other hand,
where no common word meaning can be shown, a more difficult question must be
Serial No. 79156860
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answered concerning whether the mark presented for registration would be perceived
as a surname or as an arbitrary term.” Darty, 225 USPQ at 654.
The Examining Attorney introduced evidence from the Collins American English
Dictionary that the term “hechter” has no “ordinary language” or “common word”
meaning in American English. Applicant argues that “the print-out from a single
online dictionary fails to establish that HECHTER has no recognized meaning other
than that of a surname,” 4 TTABVUE at 8, but Applicant provided no evidence of any
such recognized meaning and no evidence that HECHTER would be perceived “as an
arbitrary term,” Darty, 225 USPQ at 654, or otherwise would be perceived as having
any significance other than as a surname.
Instead, Applicant argues that the Examining Attorney’s “evidence shows that
DANIEL HECHTER is just as frequently identified as a brand as it is the name of a
person.” 4 TTABVUE at 7. The Examining Attorney responds that evidence of the
distinctiveness of DANIEL HECHTER is “not pertinent to a determination of
surname significance” for HECTHER alone, 6 TTABVUE at 13, citing In re Cazes, 21
USPQ2d 1796, 1797 (TTAB 1991) and In re McDonald’s Corp., 230 USPQ 304, 307
(TTAB 1986). We find that regardless of the distinctiveness of DANIEL HECHTER
as a mark, the absence of evidence of any non-surname meaning for the term
“hechter” supports a finding that HECHTER has no meaning in the United States
other than as a surname.

Serial No. 79156860
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The Structure and Pronunciation of HECHTER
A consideration noted in Benthin is whether a mark has the “structure and
pronunciation” of a surname. Benthin, 37 USPQ2d at 1333. “Applicants and
examining attorneys may submit evidence that due to a term’s structure or
pronunciation, the public would or would not perceive it to have surname
significance.” Eximius Coffee, 120 USPQ2d at 1280. Only the Examining Attorney
addressed this issue here in arguing that HECHTER on its face would not be
perceived as an initialism, acronym, or coined term. 7 TTABVUE at 12. This is a
“decidedly subjective” inquiry, Benthin, 37 USPQ2d at 1333, and in the absence of
evidence going to this factor, we find the “structure and pronunciation” consideration
to be neutral in our determination of surname significance on this record.
Stylization of HECHTER Mark
Another consideration noted in Benthin is whether the stylization of lettering of a
mark is distinctive enough to create a separate commercial impression beyond the
mark’s significance as a surname. Benthin, 37 USPQ2d at 1333-34. Applicant
described its mark in the application as consisting of “the navy blue stylized wording
‘HECHTER’,” but Applicant does not argue that HECHTER is not primarily merely
a surname on the basis of these features. We agree with the Examining Attorney that
the coloration and presentation of the HECHTER mark do “not rise to the level of
being sufficiently stylized to remove the primary significance from that of a surname.”
6 TTABVUE at 15. Accordingly, we find this factor to be neutral. Cf. Benthin, 37
Serial No. 79156860
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USPQ2d at 1333-34 (panel majority stated that it would have found Benthin to be
primarily merely a surname because “[w]hile Benthin is indeed a rare surname, by
the same token, it has no meanings other than that of a surname, and . . . Benthin is
the name of applicant’s Managing Director,” but that the highly stylized presentation
of the mark tipped the balance in favor of a finding that the mark was not primarily
merely a surname).
Conclusion
The record as a whole established that HECHTER is the surname of Applicant’s
founder, that it is the surname of other people in the United States, albeit a very rare
one, that there is no other demonstrated meaning of “hechter” than as a surname,
and that the modest stylization of the mark does not affect its status as a surname.
The Examining Attorney thus established a prima facie case that HECHTER is
primarily merely a surname on the basis of evidence similar in nature to the evidence
that established a prima face case in Darty. As in Darty, Applicant “submitted no
evidence that the [HECHTER] has any non-surname significance” and relied
primarily on the argument that HECHTER “is so unusual a surname that the public
would be likely to perceive it as a coined term . . . rather than as a surname.” Darty,
225 USPQ at 653. As a result, “there is no persuasive evidence in the record that
[HECHTER] would be perceived as anything other than as a surname in the United
States.” Eximius Coffee, 120 USPQ2d at 1283. Because Applicant failed to rebut the
Examining Attorney’s prima facie case, and the record as a whole supports a finding
Serial No. 79156860
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that HECHTER is primarily merely a surname in the United States, we affirm the
refusal to register.
Decision: The refusal to register is affirmed.