Cosmetic Derma-tology, Inc.

Trademark Trial and Appeal Board

Sep 27, 2006

No. 76606584 (T.T.A.B. Sep. 27, 2006)

Mailed:
27 September 2006
AD

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Cosmetic Dermatology, Inc.
________

Serial Nos. 76606583; 76606584; and 76606585
_______

Henry S. Kaplan of Feldman Gale, P.A. for Cosmetic
Dermatology, Inc.

Theodore McBride, Trademark Examining Attorney, Law Office
103 (Michael Hamilton, Managing Attorney).
_______

Before Holtzman, Rogers and Drost, Administrative Trademark
Judges.

Opinion by Drost, Administrative Trademark Judge:

On August 9, 2004, Cosmetic Dermatology, Inc.
(applicant) filed three applications to register the mark
DR. BRANDT in standard character form for the following
goods:
Skin cream, skin lotion, skin moisturizer, skin
emollient, skin mask, skin scrub, exfoliate, skin
cleanser, skin toner, skin gel, shave gel, sun screen
and sun block preparation in Class 3.1

1 Serial No. 76606583. The application contains an allegation of
dates of first use anywhere and in commerce of August 31, 2001.
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE TTAB
Ser Nos. 76606583; 76606584; and 76606585
2
Printed matter, namely, postcards, newsletters,
booklets, brochures, and press kits in the field of
skin care in Class 16.2

Cosmetic bags sold empty in Class 18.3

The examining attorney refused to register the marks
on the ground that the marks are primarily merely a surname
under Section 2(e)(4) of the Trademark Act. 15 U.S.C.
§ 1052(e)(4).
After the examining attorney made the refusals final,
applicant appealed.
“Among the factors to be considered in determining
whether a term is primarily merely a surname are the
following: (i) whether the surname is rare; (ii) whether
anyone connected with applicant has the involved term as a
surname; (iii) whether the term has any other recognized
meaning; and (iv) whether the term has the “look and feel”
of a surname.” In re United Distillers plc, 56 USPQ2d
1220, 1221 (TTAB 2000). If the mark is stylized, which is
not the case here, the fifth factor concerns the
stylization because if the stylization is “distinctive

2 Serial No. 76606584. The application contains an allegation of
dates of first use anywhere and in commerce of July 2002.
3 Serial No. 76606585. The application contains an allegation of
dates of first use anywhere and in commerce of August 2002. The
examining attorney objected to applicant’s previous
identification for the goods in Class 18. In its reply brief (p.
7), applicant adopted one of the identifications of goods that
was suggested by the examining attorney.
Ser Nos. 76606583; 76606584; and 76606585
3
enough, this would cause the mark not to be perceived as
primarily merely a surname.” See In re Benthin Management
GmbH, 37 USPQ2d 1332, 1334 (TTAB 1995).
“The USPTO has the burden of establishing a prima
facie case that a term is primarily merely a surname.” In
re Gregory, 70 USPQ2d 1792, 1794 (TTAB 2004). To meet its
burden, the Office must show that the primary significance
of the term is “a surname significance. If it is, and it
is only that, then it is primarily merely a surname.” In
re Harris-Intertype Corp., 518 F.2d 629, 186 USPQ 238, 239
(CCPA 1975), quoting, Ex parte Rivera Watch Corp., 106 USPQ
145 (Comm’r Pat. 1955) (emphasis in original).
With his first Office action, the examining attorney
submitted evidence to support the refusal, but he also
attached three Principal Register registrations that were
registered without resort to Section 2(f) of the Trademark
Act, and suggested that applicant could base a claim of
acquired distinctiveness on these registrations. The three
registrations are:
1. No. 2,285,902
BRANDT (typed)
“Make-up, skin cream, skin lotion, skin moisturizer and
skin emollients” in Class 3

Ser Nos. 76606583; 76606584; and 76606585
4
2. No. 2,481,763

“Make-up, skin cream, skin lotion, skin moisturizer and
skin emollients” in Class 3

3. No. 2,913,027
DR. BRANDT MICRODERMABRASION IN A JAR (typed)
“Skin cream; skin lotion; skin moisturizer; facial scrub;
and exfoliate in the nature of facial scrub” in Class 3.

The examining attorney’s evidence to support the
refusal comprises three additional pages. One page was
from a website titled “Last Name Meanings” from “the
MyFamily.com Network.” Under “Search results for:
Brandt,” the following information was displayed:
33,489 Brandt’s in existing Family Trees
These could be completed branches of your family tree
included in the more than 250 million names in trees
already submitted by our users.

53,804 Brandt’s in Census records
Find family facts like age, residence, occupation and
more. Trace up to six generations of your family tree
with 140 years of American history.

6,651 Brandt’s in Immigration Records (1500s-1900s)
Learn details about your ancestors including physical
description, age, occupation as well as migration
information like name/type of ship and last foreign
address.

38,474 Brandt’s in Birth, Marriage, Military & Death
Records
Ser Nos. 76606583; 76606584; and 76606585
5
Results found in Social Security Death Index as well
as birth, marriage and death records. Also includes
biographies, military records and historical journals.

72,081 Brandt’s in Historic Newspaper (1786-1900s)
View legal notices, community events, wedding
announcements, births, advertisements and obituaries
for members of your family tree.

No entries from this website were included as evidence.
The examining attorney’s other two pages consist of
ten entries from a Google search for “Mr. Brandt” (9,770
results). Two of these entries appear to be from the same
website so that there are only eight individual entries.
Of these eight, one appears to show use of the name as a
first name (“Mr. Brandt Louie – SFU Board of Governors”)
and one is apparently from Australia.4 Inasmuch as “it
is the surname significance of the term in the United
States which is determinative of the registrability issue,”
the Australian evidence is much less probative. In re BDH
Two Inc., 26 USPQ2d 1556, 1558 (TTAB 1993).
In response to this evidence, applicant acknowledged
the three registrations referenced by the examining
attorney and submitted evidence that applicant had obtained
an additional registration (No. 2,959,414) for the mark DR.
BRANDT ADVANCED DERMO-BOTANICAL SKINCARE for similar skin
care products on the Principal Register without resort to

4 www.polsis.uq.edu.au.
Ser Nos. 76606583; 76606584; and 76606585
6
Section 2(f).5 Applicant also provided evidence that there
is a bird known as “Brandt’s cormorant” and a town named
Brandt in Deuel County, South Dakota with an estimated
population in 2003 of 108. More significantly, applicant
included an entry from dictionary.com that defined Brandt
as Willy Brandt (1913-1992), “German political leader. He
served as chancellor of West Germany (1969-1974) and won
the 1971 Noble Peace Prize for his efforts to reduce
tension between the East and the West.” Finally, applicant
included the “Consent of Dr. Fredric S. Brandt” to the
“registration of my name Dr. Brandt in connection with the
foregoing application.”
In his final Office action, the examining attorney
provided additional information on the Brandt’s Cormorant
and Brandt, South Dakota, as well as a page from the
Wikipedia website that indicated that “Brandt is a common
German family name and hence commonly refers to people” and
it set out the following individuals:
- Georg Brandt (1694-1768) – Swedish chemist and
mineralogist
- Johann Friedrich von Brandt was a German naturalist

5 In a paper dated September 12, 2006, which applicant captioned
as a sur-reply, applicant informed the board that a notice of
allowance issued for its mark “dr. brandt” in a design similar to
the design in Reg. No. 2,481,763. At this late stage, it is not
appropriate to consider additional evidence that at best is
cumulative with the other evidence of record.
Ser Nos. 76606583; 76606584; and 76606585
7
- Karl Brandt was the personal physician to Adolf
Hitler and headed the administration of the Nazi
euthanasia program in 1939
- Di Brandt is an award winning Canadian poet and
literary critic
- Kyle Brandt is an actor
- Paul Brandt is a Canadian country music singer
- Richard Brandt is a utilitarian philosopher
- Willy Brandt was German chancellor from 1969-1974
and Nobel laureate in 1971.

Based on this evidence, we now must apply the factors
discussed previously to determine if the term BRANDT is
primarily merely a surname.6
The first factor we consider is the evidence of
whether the surname Brandt is rare. Normally, the
examining attorney includes evidence of telephone listings
in surname cases. Here, the examining attorney has chosen
to rely on simply listing the total number of responses
that a search for “Brandt” on a database returned. We have
cautioned that “the probative value of search engine
summary results (and the web site contents themselves) will
vary depending upon the facts of a particular case.” In re

6 We have not considered any new evidence that applicant
submitted with its briefs that was not previously submitted. In
re Zanova Inc., 59 USPQ2d 1300, 1302-03 (TTAB 2001) (“Moreover,
creation of the record to be considered in an ex parte appeal
must, at some point, be concluded. Accordingly, we have not
considered the evidence submitted with the reply brief and deny
the alternative request for remand so that the Examining Attorney
can consider this evidence”). We add that even if we did, the
evidence would include additional evidence, such as telephone
entries, that would support the examining attorney’s position.
Ser Nos. 76606583; 76606584; and 76606585
8
Fitch IBCA Inc., 64 USPQ2d 1058, 1060 (TTAB 2002). See
also In re Thomas, 79 USPQ2d 1021, 1026 (TTAB 2006) (“The
number of Google hits for ‘black market’ with jewelry,
without any context for the hits, is irrelevant”). Here,
we are troubled by the description of the searched
databases. For example, it is unclear whether the
information is even limited to United States information.
The family tree information does not indicate whether it is
only providing family tree information for the parts of a
family tree that consists of family members in the United
States. Other information is historical. Applicant argues
that “[l]istings over the last 200 years from 1786 into the
1900’s are not competent evidence to establish what
consumers in the market place perceive today.” Reply Brief
at 4. We agree that historical newspapers from the
nineteenth century or immigration records from the “1500s”
are not very relevant to understanding whether a term is a
surname in the twenty-first century. Furthermore, both the
historical newspapers and immigration records end at the
“1900s.” It would be helpful to know whether the 1900s
included the 1990s as opposed to ending at the “Roaring
Twenties.” In addition, the 140 years of Census records
would not be current information because the recent census
information would be personal information that would not be
Ser Nos. 76606583; 76606584; and 76606585
9
available to the public. 36 CFR § 1256.24(a) (“[I]n
accordance with 44 U.S.C. § 2108(b), we do not grant access
to restricted census and survey records of the Bureau of
the Census less than 72 years old containing data
identifying individuals enumerated in population
censuses”).
While it may be a good guess that if a surname was a
common surname in historical census records, it is likely
to continue to be a common surname now, our decision should
be based on evidence and not a guess. Therefore, we look
at the actual evidence of record on the rareness of the
surname Brandt. We note that the examining attorney has
provided Google search results that indicate that at least
six people have the surname “Brandt.” In addition, because
there are more that 9,000 results for “Mr. Brandt,” it is
reasonable to conclude that “Brandt” is at least a rare
surname in the United States. See, e.g., In re Gregory, 70
USPQ2d 1792, 1795 (TTAB 2004) (Board held ROGAN to be
primarily merely a surname, in part because of more than
1000 telephone listings and the “existence of these
individuals [former well-known congressman and a Salt Lake
City councilman] with the surname ROGAN leads us to
conclude that the name may be rare when viewed in terms of
frequency of use as a surname in the general population,
Ser Nos. 76606583; 76606584; and 76606585
10
but not at all rare when viewed as a name repeated in the
media and in terms of public perception. Accordingly, we
conclude that ROGAN is not a rare surname”). Unlike the
Gregory case, the evidence is simply too cryptic to
conclude that “Brandt” is anything other than a rare
surname in the United States. However, we certainly cannot
find that the term BRANDT is so extremely rare that the
evidence would only slightly support the examining
attorney’s position. See In re Garan Inc., 3 USPQ2d 1537,
1540 (TTAB 1987).
The second factor we consider is whether anyone
associated with applicant has the involved term as a
surname. In this case, applicant has submitted the consent
of Dr. Fredric S. Brandt. This factor supports the
examining attorney’s position.
The third factor concerns any other recognized meaning
that the term may have. We note that the examining
attorney’s Google search was for the term “Mr. Brandt.”
This search would tend to not discover any non-surname
meaning for the term. Applicant, in response, points out
that the term is a name of a type of cormorant and a very
small town in South Dakota. This evidence is
insignificant. In re Nelson Souto Major Piquet, 5 USPQ2d
1367, 1367-68 (TTAB 1987) (“Piquet” held primarily merely a
Ser Nos. 76606583; 76606584; and 76606585
11
surname even though it was also “the name of a relatively
obscure card game”); Harris-Intertype, 186 USPQ at 239
(evidence that “Harris’ was the name of cities in Arizona,
Kansas, Minnesota, Missouri, and Oklahoma and counties in
Georgia and Texas did not prevent term from being primarily
merely a surname); In re Sava Research Corp., 32 USPQ2d
1380, 1381 (TTAB 1994) (“[W]e have given little weight to
the fact that SAVA is the name of a town in Israel and a
river in Bosnia”).
Still relative to the third factor, applicant has
provided evidence that the term Brandt is included in an
online dictionary as a reference to Willy Brandt, the
former chancellor of West Germany and a Noble Peace Prize
winner. We add that the term Brandt is similarly defined
in The Random House Dictionary of the English Language
(unabridged) (2d ed. 1987) as a reference to the late West
German chancellor.7 While the examining attorney argues
that “the name WILLY BRANDT is not so widely known so as to
cause DR. BRANDT to loose its significance as a surname in
the eyes of the public” (Brief at unnumbered p. 10), the
examining attorney has structured his search in such a way

7 We take judicial notice of this definition. University of
Notre Dame du Lac v. J.C. Gourmet Food Imports Co., 213 USPQ 594,
596 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir.
1983).
Ser Nos. 76606583; 76606584; and 76606585
12
that results concerning the West German chancellor would
not likely appear. However, “decisions concerning
historical names draw a line between names which are so
widely recognized that they are almost exclusively
associated in terms of their commercial impressions with
the historical figures, and names which are semihistorical
in character.” In re Pickett Hotel Company, 229 USPQ 760,
761 (TTAB 1986) (citation omitted). The evidence does not
demonstrate that the term “Brandt” would be almost
exclusively associated with Willy Brandt. Therefore, we
conclude that this factor only slightly favors applicant.8
The fourth factor is whether the term has the “look
and feel” of a surname. We note that applicant has
included evidence that it owns Principal Register
registrations that include the word BRANDT in the mark and
that are not registered under Section 2(f). However, most
of these marks have a design or other words that may have
detracted from the surname significance of the term. See,

8 Although applicant does not argue the point, we do note that
one Google result could be construed as an indication that Brandt
may be a given name. We have given applicant the benefit of the
doubt and considered this result as a given name. However, we
cannot extrapolate from this single result that Brandt is a
common given name. Even the name Hamilton was held to be
primarily merely a surname despite more significant evidence of
its use as a given name. In re Hamilton Pharmaceuticals Ltd., 27
USPQ2d 1939, 1944 (TTAB 1993) (The “evidence of record shows that
usage of the common surname ‘HAMILTON’ as a given name is highly
unusual”).
Ser Nos. 76606583; 76606584; and 76606585
13
e.g., Benthin, 37 USPQ2d at 1334 (Stylization may cause a
mark “not to be perceived as primarily merely a surname”).
The registration of a word does not foreclose the
examining attorney from taking a different position in
another application. The fact that applicant has obtained
another registration for a different mark (DR. BRANDT and
design or BRANDT) does not preclude further inquiry into
the question of whether the mark DR. BRANDT without a
design is a surname. See also In re Industrie Pirelli
Societa per Azioni, 9 USPQ2d 1564, 1565 (TTAB 1988) (“We
are also unpersuaded by applicant's argument that its
ownership of incontestable registrations for the mark
‘PIRELLI’ means that the Examining Attorney's refusal in
this case is an impermissible attack on those incontestable
registrations”). While we have considered the evidence
that other examining attorneys have concluded that in
certain circumstances the term BRANDT apparently was not
primarily merely a surname, we must make our determination
on the record here.
The evidence shows that the term “Brandt” in addition
to having surname significance is, as noted herein, also
the last name of a German chancellor. Thus, the only
exposure that most American would have to the term is as
simply a surname or the surname of a German political
Ser Nos. 76606583; 76606584; and 76606585
14
leader. There is nothing to suggest that it would not have
the “look and feel” of a surname. We conclude by finding
that this factor favors the examining attorney’s position.
In addition to the term BRANDT, we note that the
actual mark that applicant seeks to register is DR. BRANDT.
The presence of the term “DR.,” which is an abbreviation
for the word “Doctor” does not significantly change the
meaning of the mark. See In re Rath, 402 F.3d 1207, 74
USPQ2d 1174 (Fed. Cir. 2005) (Federal Circuit affirmed
board decision holding that DR. RATH was primarily merely a
surname); In re Giger, 78 USPQ2d 1405 (TTAB 2006) (GIGER MD
held to be primarily merely a surname). We also look at
how the term is used on the specimens. The specimens for
Application No. 76606584 contain the following information:
the doctor

Dr. Fredric Brandt is a board certified member of the
American Board of Internal Medicine and the American
Board of Dermatology and has been in practice for more
than 22 years.

Dr. Brandt, author of the best-selling book “age-
less”, is internationally sought after as a lecturer
in his field.

Consumers viewing these specimens would understand
that “Brandt” is the surname of an individual associated
with the applicant. Therefore, these specimens reinforce
the surname significance of the mark DR. BRANDT.
Ser Nos. 76606583; 76606584; and 76606585
15
We conclude that the mark DR. BRANDT, when used on the
identified goods, is primarily merely a surname. Even
though the evidence only lets us conclude that the term
“Brandt” is a rare surname, nonetheless, it is a surname
and even people who associated the term with the late West
German chancellor will understand that it is the
chancellor’s surname. Also, considering the fact that Dr.
Brandt is associated with applicant and that the term does
have the look and feel of a surname, we agree that the
examining attorney has made out a prima facie case that the
mark DR. BRANDT is primarily merely a surname, which
applicant has not rebutted.
Decision: The examining attorney’s refusals to
register the mark DR. BRANDT on the ground that it is
primarily merely a surname are affirmed.