Hammerton, Inc.

Trademark Trial and Appeal Board

Feb 18, 2004

No. 76214161 (T.T.A.B. Feb. 18, 2004)

Mailed
February 18,
2004
Paper No. 11
RFC
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Hammerton, Inc.
________
Serial No. 76214161
_______
K. S. Cornaby of Jones, Waldo, Holbrook & McDonough for
Hammerton, Inc.
D. Beryl Gardner, Trademark Examining Attorney, Law Office
107 (Janice O’Lear, Managing Attorney).
_______
Before Cissel, Bottorff and Drost, Administrative Trademark
Judges.
Opinion by Cissel, Administrative Trademark Judge:
On February 22, 2001, applicant, a Utah corporation,
filed the above-referenced application to register the mark
HAMMERTON on the Principal Register for “retail and
wholesale services by direct solicitation by agents, mail-
order/catalog services, and computerized on-line services,
all featuring lighting, furnishings and accessories in
International Class 35. Manufacture of lighting,
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Ser. No. 76214161
2
furnishings and accessories in International Class 40.”
The basis for filing the application was applicant’s claim
that it had used in the mark in connection with the
specified services in interstate commerce since October 1,
2000.
The Examining Attorney refused registration under
Section 2(e)(4) of the Lanham Act, 15 U.S.C. Section
1052(e)(4), on the ground that the mark is primarily merely
a surname. Submitted in support of the refusal to register
were copies from an on-line directory, ReferenceUSA,
formerly known as Phonedisc, listing 112 people whose
surname is “Hammerton.” The Examining Attorney also held
that applicant’s recitation of services was unacceptably
indefinite, and suggested an acceptable amendment to the
recitation.
Applicant responded to the first Office Action with an
amendment to the recitation of services and argument
against the refusal to register. Applicant amended the
recitation of services to read as follows: “Class 35:
Retail and wholesale services by direct solicitation by
sales agents, mail-order and catalog services, and
computerized on-line services, all featuring lighting,
furnishings and accessories. Class 40: Manufacture of
lighting, furnishings and accessories therefore to order
Ser. No. 76214161
3
and/or specification of others.” With regard to the
refusal to register, applicant conceded that “Hammerton” is
a surname, but argued that it should not be considered to
be “primarily merely a surname,” within the context of the
Lanham Act because so few people are named “Hammerton.”
Applicant contended that the term “Hammer” in its mark
“elicits an image in the public eye that has nothing to do
with its function as a possible surname, and that “[t]he
same may be said of the word ‘ton,’ as part of the
trademark.”
The Examining Attorney accepted the amendment to the
recitation of services in the application, but maintained
and made final the refusal to register under Section
2(e)(4) of the Act. He conceded that the directory
evidence shows that “Hammerton” is not a popular surname,
but argued that this fact does not preclude a finding that
its primary significance is that of a surname. He
submitted a dictionary excerpt which reveals no listing or
meaning for the term, and concluded that it has no
recognizable meaning or significance other than as a
surname. He took the position that HAMMERTON, although
admittedly a rare surname, nonetheless has the “look and
feel” of a surname, citing examples of other surnames such
as “Hammerbacher,” “Hammerstein,” “Hilton” and “Warrenton.”
Ser. No. 76214161
4
Applicant timely filed a Notice of Appeal. Both
applicant and the Examining Attorney filed appeal briefs.
Applicant requested an oral hearing before the Board, but
subsequently withdrew the request.
Accordingly, we have resolved this appeal based on
consideration of the record, the arguments presented in the
briefs, the statute and the relevant legal precedents.
Section 2(e)(4) of the Lanham Act precludes
registration of a mark which is primarily merely a surname.
The issue is what the primary significance of the term is
to prospective purchasers of the goods or services
specified in the application. In re Kahn & Weisz Jewelry
Mfg. Corp., 508 F.2d 831, 184 USPQ 421 (CCPA 1975).
Factors to take into consideration are as follows: whether
the surname is rare; whether the name is the surname of
anyone connected with the applicant; whether the name has
any recognized meaning or significance other than as a
surname; whether the stylization of the lettering in which
the name is presented is distinctive enough to create a
commercial impression separate and apart from that of the
surname; and whether the name has the “look and feel” of
the surname.
Even a relatively uncommon surname is properly refused
registration under Section 2(e)(4) of the Act if its
Ser. No. 76214161
5
primary significance is that of a surname. See In re
Establissements Darty et Fils, 759 F.2d 15, 225 USPQ 652
(Fed. Cir. 1985), wherein DARTY was held to be primarily
merely a surname; In re Rebo High Definition Studio, Inc.,
15 USPQ2d 1314 (TTAB 1990), wherein REBO was held to be
primarily merely a surname; and In re Pohang Iron & Steel
Co., Ltd., 230 USPQ 79 (TTAB 1986), wherein POSTEN was
similarly refused registration under this section of the
Lanham Act.
In the case at hand, both applicant and the Examining
Attorney agree that HAMMERTON is a surname, albeit a rare
one. There is no evidence that “Hammerton” is the surname
of anyone connected with the applicant. Notwithstanding
applicant’s unsupported argument that its mark “is an
original, devised mark created by Applicant to identify its
business which includes manufacture of metal artifacts
showing ‘hammered edges,’ among other things,” there is no
evidence that HAMMERTON has any recognized meaning or
significance other than that of a surname. The
presentation of the mark in the specimens of record, as
well as the depiction of the mark in the typed drawing
submitted with the application, plainly preclude applicant
from arguing that the stylization of the lettering is
distinctive enough to create a commercial impression
Ser. No. 76214161
6
separate and apart from that of the surname. Lastly, we
agree with the Examining Attorney that HAMMERTON has the
“look and feel” of a surname.
In short, although “Hammerton” in appears to be a rare
surname and there is no evidence that anyone connected with
applicant has the surname “Hammerton,” this record shows
that many people do have the surname “Hammerton” and that
the term has no other recognized meaning or significance
other than that of a surname. Under these circumstances,
we conclude that this record is adequate support for the
refusal to register under Section 2(e)(4) of the Lanham
Act. Applicant’s arguments that it chose the mark because
some of its goods have hammered edges and that it has used
the mark for three years with the designation “TM” to
indicate its trademark significance are not persuasive of
applicant’s contention that the primary significance of
HAMMERTON to purchasers of applicant’s services is anything
other than that of a surname.
DECISION: The refusal to register under Section 2(e)(4) of
the Act is affirmed.