Detroit Rivertown Brewing Company, LLC

Trademark Trial and Appeal Board

Mar 2, 2017

No. 86669897 (T.T.A.B. Mar. 2, 2017)

This Opinion is not a
Precedent of the TTAB

Mailed: March 2, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Detroit Rivertown Brewing Company, LLC
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Serial No. 86669897
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Daniel Christopherson of Lehrman Beverage Law PLLC,
for Detroit Rivertown Brewing Company, LLC.
Zachery Bello, Trademark Examining Attorney, Law Office 111,
Robert Lorenzo, Managing Attorney.
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Before Kuhlke, Adlin and Pologeorgis,
Administrative Trademark Judges.

Opinion by Pologeorgis, Administrative Trademark Judge:
Detroit Rivertown Brewing Company, LLC (“Applicant”) seeks registration on the
Principal Register of the mark ATWATER SPIRITS (in standard characters;
SPIRITS disclaimed) for “distilled spirits” in International Class 33.1

1 Application Serial No. 86669897, filed on June 22, 2015, based upon Applicant’s allegation
of a bona fide intention to use the mark in commerce under Section 1(b) of the Trademark
Act, 15 U.S.C. § 1051(b). Applicant claims ownership of Principal Register Registration No.
3928495 for the mark ATWATER BLOCK BREWERY (BREWERY disclaimed) for “beer.”
Serial No. 86669897
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The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(e)(4) of the Trademark Act, 15 U.S.C. § 1052(e)(4), on the ground that
ATWATER SPIRITS, when viewed in its entirety, is primarily merely a surname.
When the refusal was made final, Applicant appealed. We affirm the refusal to
register.
I. Applicable Law – Primarily Merely a Surname
Section 2(e)(4) of the Trademark Act precludes registration of a mark on the
Principal Register which is “primarily merely a surname” without a showing of
acquired distinctiveness under Section 2(f) of the Act, 15 U.S.C. § 1052(f).2 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. See also 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)
(“[A] correct resolution of the issue can be made only after the primary significance
of the mark to the purchasing public is determined ...”) and In re Etablissements Darty
et Fils, 759 F.2d 15, 225 USPQ 652, 653 (Fed. Cir. 1985) (“Darty”). 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

2 As is normally the case with § 1(b) applications, Applicant has not claimed acquired
distinctiveness under § 2(f) of the Trademark Act. See generally TMEP § 1212.09 (January
2017).
Serial No. 86669897
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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. 225
USPQ at 653. The Board's oft-cited “Benthin factors,” see In re Benthin Mgmt. GmbH,
37 USPQ2d 1332, 1333-34 (TTAB 1995), are also examples of inquiries that may lead
to evidence regarding the purchasing public’s perception of a term’s primary
significance.3 These inquiries or “factors” are not exclusive and any of these
circumstances -- singly or in combination -- and any other relevant circumstances
may shape the analysis in a particular case.3 In re Eximius Coffee, LLC, 120 USPQ2d
1276, 1278 (TTAB 2016).
When we are faced with a Section 2(e)(4) refusal of a term in standard character
form, with no other literal or design elements, we consider the impact the applied-for
term has or would have on the purchasing public because “it is that impact or
impression which should be evaluated in determining whether or not the primary
significance of a word when applied to a product 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, 149 (Comm'r Pat. 1955)) (emphasis in original).

3 In Benthin, the Board stated that “factors” to be considered in determining whether a term
is primarily merely a surname include (1) the degree of a surname's rareness; (2) whether
anyone connected with applicant has that surname; (3) whether the term has any recognized
meaning other than that of a surname; (4) whether the term has the “structure and
pronunciation” of a surname; and (5) whether the stylization of lettering is distinctive enough
to create a separate commercial impression. Where, as here, the mark is in standard
characters, it is unnecessary to consider the fifth factor. In re Yeley, 85 USPQ2d 1150, 1151
(TTAB 2007).
Serial No. 86669897
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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. There is no rule as to
the kind or amount of evidence necessary to show that the applied-for mark would be
perceived as primarily merely a surname. This question must be resolved on a case-
by-case basis. Id. at 654; see also, e.g., In re Pohang Iron & Steel Co., 230 USPQ 79,
79 (TTAB 1986). The entire record is examined to determine the primary significance
of a term.
We consider the evidence to determine whether the primary significance of
ATWATER SPIRITS to the purchasing public is that of a surname.
Whether ATWATER is Rarely Encountered as a Surname
We first consider the frequency with which ATWATER is encountered or
recognized by the public as a surname. In order to show that the primary significance
of the term ATWATER is that of a surname, the Examining Attorney has submitted
the following evidence:4
1. A representative listing generated from a search conducted of an online
telephone directory (www.whitepages.com) indicating “5,009 profiles found for
‘ATWATER,’ and 734 possible profiles;”
2. Copies of two use-based third-party registrations: one for the mark ATWATER
POTTERY (POTTERY disclaimed), registered under § 2(f) of the Trademark
Act and the second for ATWATER SIGNAL for “newspapers for general
circulation,” with a § 2(f) statement as to ATWATER;

4 See September 12, 2015 and March 18, 2016, Office Actions.
Serial No. 86669897
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3. a Wikipedia biographical article about Lee Atwater, an American political
consultant and strategist for the Reagan and George H.W. Bush
administrations;
4. an article from the online version of The Nation (www.thenation.com) also
concerning Lee Atwater, including a screenshot of a video clip regarding his
1981 comments on the Southern Strategy, that touts Mr. Atwater as the “late,
legendary brutal campaign consultant;” and
5. Google search results for the term “ATWATER,” that includes a listing of an
article about Lee Atwater, as well as Alexis Atwater, MD.
Applicant argues that the probative value of the Examining Attorney’s
Whitepages evidence is limited because it is unclear: (1) what it means to be listed in
a profile on Whitepages.com, or what it means to be listed as a “possible match;” (2)
whether there are multiple or duplicate profiles for the same individuals, or even
fabricated profiles; (3) whether the individuals are alive or deceased; and (4) whether
the individuals are American or foreigners.5 To this last point, Applicant has
submitted evidence indicating that at least 38 profiles of “Atwater” from the
whitepages.com listing refer to individuals in Canada.6 Applicant also maintains that
the number of Whitepages.com listings for “ATWATER,” when compared to the total

5 See Applicant’s Appeal Brief, p. 5, 4 TTABVUE 6.
6 See Exhibit B of Applicant’s March 14, 2016, Response to Office Action.
Serial No. 86669897
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population of the United States, demonstrates that the term “ATWATER” is rare and
would not be perceived by the purchasing public as primarily a surname.7
Applicant’s arguments are unpersuasive. The fact that some of the listings may
refer to deceased individuals does not detract from the surname significance of the
term ATWATER. Similarly, while some of the listings may refer to individuals
residing in Canada, the vast majority of the listings refer to individuals in 30 different
U.S. states, as well as the District of Columbia. Furthermore, “the question whether
a surname is or is not rare is not to be determined solely by comparing the number of
listings of the name to the total number of listings in a vast computerized database.”
In re Gregory, 70 USPQ2d 1792, 1795 (TTAB 2004). “Given the large number of
different surnames in the United States, even the most common surnames would
represent but small fractions of such a database.” Id.
Moreover, even if “ATWATER” is a relatively rare surname in the United States,
that would not per se preclude a finding that a term is primarily merely a surname
inasmuch as even a rare surname may be held primarily merely a surname if its
primary significance to purchasers is that of a surname. See In re Adlon Brand GmbH
& Co. KG C10 Fundus Fonds-Verwal Tungen GmbH, 120 USPQ2d 1717, 1721 (TTAB
2016) (“The issue to be determined under the statute is whether the public would
perceive the surname significance as the proposed mark's primary significance, not
whether the surname is rarely encountered.); Eximius Coffee, 120 USPQ2d at 1281

7 See Applicant’s Appeal Brief, p. 6, 4 TTABVUE 7.
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(“even a rare surname is unregistrable if its primary significance to purchasers is a
surname.”).
Applicant contends that a deceased political strategist for former Presidents that
served over 25 years ago (Mr. Atwater) is not a prominent person to the American
purchasing public. The fact that Lee Atwater died more than 25 years ago does not
diminish the fact that his surname was Atwater, however. In fact, the evidence
submitted by the Examining Attorney suggests that he was known to many, in that,
not only was he a political strategist for both the Reagan and George H. W. Bush
administrations, but he also served as the Chairman of the Republican National
Committee and “clearly approved” the “Willie Horton” political advertisement
credited with helping to turn the tide during the 1988 Presidential election.8
In view of the foregoing, we find that the phone directory listings, census, third-
party registrations, Google search results, and online articles collectively show that
ATWATER is not rarely used or encountered as a surname, and they collectively
demonstrate that the public has been exposed to and will perceive ATWATER as a
surname.
Whether ATWATER is the Surname of Anyone Connected with Applicant
There is no evidence to indicate that anyone connected with Applicant has the
surname ATWATER; indeed, Applicant states that “‘ATWATER’ is not the surname
of anyone connected with Applicant.”9 Even though no one connected with Applicant

8 See March 18, 2016, Office Action (Wikipedia article).
9 See Applicant’s March 14, 2016, Response to Office Action.
Serial No. 86669897
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is named Atwater, that says nothing about the primary significance of the term to
the purchasing public. See Adlon, 120 USPQ2d at 1724 (“[t]he apparent absence of a
person named ADLON in Applicant’s current management does not, in itself, reduce
the likelihood that the public would perceive the mark as a surname.”).
Whether ATWATER has any Recognized Meaning other than a Surname
In arguing that ATWATER has another, non-surname significance, Applicant
points out that “the word ‘ATWATER’ is a combination of the preposition ‘at’ and the
noun ‘water,’ which combine to form a phrase connoting being ‘at the water,’” and
maintains that “consumers will take a leap of the imagination to anticipate that a
business using the phrase ‘Atwater’ is, like Applicant, located ‘at’ or near the ‘water.’”
Applicant specifically relies on the “Atwater Family History” entry from
“ancestry.com” which includes this definition of “ATWATER” from the Dictionary
of American Family Names: “topographic name for someone whose dwelling was
by a river or lake, Middle English atte water ‘at the water.’”10 A topographic name is
one that is “derived from general descriptive references to a feature of the landscape
such as a stream, a ford, a tree, or a hill.”11 This evidence serves to undercut
Applicant’s argument in that it acknowledges ATWATER is a surname and simply
provides the derivation of the surname. Applicant also maintains that the Examining
Attorney’s own evidence shows that the term “Atwater” is the name of a town in

10 See Exhibit E of Applicant’s March 14, 2016, Response to Office Action.
11 Dictionary of American Family Names vol. 1 p. xvi. The Board may take judicial
notice of standard reference works. In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1087 n.3
(TTAB 2016) (judicial notice taken from encyclopedia).
Serial No. 86669897
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California, and thus that the term has a well-known geographical meaning which is
just as significant as any surname meaning of the term.12 Applicant, however, has
not established that the town identified in the Examining Attorney’s submitted
evidence is well known to the purchasing public, just as it has not established that
the purchasing public perceives the term as meaning “at the water.”
The mere existence of non-surname meanings of the mark does not preclude a
finding that the mark is primarily merely a surname. “To be considered primarily
merely a surname, a term does not have to be devoid of any non-surname
significance.” In re Isabella Fiore LLC, 75 USPQ2d 1564, 1567 (TTAB 2005). As this
Board has previously stated:
The question is not whether a mark having surname significance might
also have a non-surname significance, but whether, in the context of the
goods or services at issue, that non-surname significance is the mark’s
primary significance to the purchasing public, thus eclipsing and
relegating the mark’s surname significance to secondary rather than
primary status.

Miller v. Miller, 105 USPQ2d 1615, 1621 (TTAB 2013) (citations omitted). “Thus the
determining factor is the primary (not secondary) significance to the public....”
Harris-Intertype, 186 USPQ at 239. See also Darty, 225 USPQ at 653 (“The statute ...
reflects the common law that exclusive rights in a surname per se can not be
established without evidence of long and exclusive use which changes its significance
to the public from a surname of an individual to a mark for particular goods or

12 See Applicant’s Appeal Brief, p. 15, 4 TTABVUE16.
Serial No. 86669897
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services.”). Here, the evidence reveals that ATWATER’s primary significance to
spirits consumers is a surname.
Whether ATWATER has the Structure and Pronunciation of a Surname
Applicant argues that “ATWATER” does not have the structure and pronunciation
of a surname, relying on a list of the 450 most common surnames according to the
2000 U.S. census data which reveal none beginning with the letters “AT,” containing
the combination “TW,” or concluding with the letters “ATER.”13 This evidence does
not establish whether or not ATWATER as a whole has the structure or pronunciation
of a surname, though we do not require evidence to know that many surnames end
with the suffix “ter,” such as Baxter, Foster, Hunter, Webster, etc.
Whether Contextual Use by Applicant Reveals Surname Significance
Inasmuch as there is no evidence showing the mark in actual use by Applicant,
the record does not reveal any contextual clues that might identify the term as a
surname to consumers.

Upon consideration of the record as a whole, and taking into consideration all
relevant evidence of the public’s perception, we find that the primary significance of
“ATWATER” to the purchasing public is that of a surname.

13 See Applicant’s Appeal Brief, p. 16, 4 TTABVUE 17; Applicant’s March 14, 2016, Response
to Office Action.
Serial No. 86669897
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Additional Wording
As for whether ATWATER SPIRITS, as a whole, is primarily merely a surname,
we find that the inclusion of the generic term “SPIRITS” does not diminish the
applied-for mark’s primary significance as a surname. In this case, Applicant
disclaimed “SPIRITS.” The Examining Attorney has made of record a Wikipedia
article which demonstrates that the term “spirits” is the common commercial name
for Applicant’s identified goods.14 “Combining the surname with the generic name for
the [goods or] services does not overcome a mark’s surname significance.” Miller, 105
USPQ2d at 1622.
II. Conclusion.
Given our findings that “ATWATER” would be perceived primarily as a surname
and its combination with the term “SPIRITS” does not detract from or change the
surname significance conveyed by the mark as a whole, we find that consumers would
perceive ATWATER SPIRITS as primarily merely a surname. In reaching this
conclusion, we have carefully considered all of Applicant’s arguments and evidence,
even if not specifically discussed herein, but have not found them persuasive.
Decision: The refusal to register Applicant’s ATWATER SPIRITS mark under
Section 2(e)(4) of the Trademark Act is affirmed.

14 See September 12, 2015, Office Action.