IdeaStream Consumer Products LLC

Trademark Trial and Appeal Board

Dec 27, 2005

No. 76543788 (T.T.A.B. Dec. 27, 2005)

Mailed: December 27, 2005

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re IdeaStream Consumer Products LLC
________

Serial No. 76543788
_______

James R. Menker of Smith, Gambrell & Russell LLP for IdeaStream
Consumer Products LLC.

Georgia Ann Carty Ellis, Trademark Examining Attorney, Law Office
108 (Andrew Lawrence, Managing Attorney).
_______

Before Seeherman, Holtzman and Kuhlke, Administrative Trademark
Judges.

Opinion by Holtzman, Administrative Trademark Judge:

An application has been filed by IdeaStream Consumer
Products LLC to register the mark VAULTZ for "purses" in
International Class 18.1
The trademark examining attorney has refused registration
under Section 2(e)(4) of the Trademark Act on the ground that
VAULTZ is primarily merely a surname.
Applicant has appealed. Both applicant and the examining
attorney have filed briefs. An oral hearing was not requested.

1 Application Serial No. 76543788, filed September 9, 2003, asserting a
bona fide intention to use the mark in commerce.
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Ser No. 76543788
2
We reverse the refusal to register.
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 In re United Distillers plc, 56 USPQ2d 1220
(TTAB 2000). The burden is on the examining attorney to
establish a prima facie case that a term is primarily merely a
surname. In re Etablissements Darty et Fils, 759 F.2d 15, 225
USPQ 652 (Fed. Cir. 1985). Among the factors to be considered in
determining whether a term is primarily merely a surname are (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; and (4) whether
the term has the "look and sound" of a surname. See In re
Benthin Management GmbH, 37 USPQ2d 1332, 1333 (TTAB 1995). See
also In re Gregory, 70 USPQ2d 1792 (TTAB 2004).
As to the first factor, the examining attorney has
conceded,2 and the evidence shows, that VAULTZ is a rare surname.
The examining attorney has submitted excerpts of stories from the

Nexis database and printouts from numerous Internet websites.3

2 Office action dated April 14, 2005 at 1.
Ser No. 76543788
3
The Nexis excerpts contain references to 12 individuals with the
surname VAULTZ. We note that all but one of these stories
appeared in a New Orleans newspaper, the Times-Picayune, and that
they all concern local residents. While this evidence may show
that VAULTZ might be perceived as a surname in New Orleans or
perhaps Louisiana, it does not establish wide exposure of the
name to the general public.
The examining attorney's Internet evidence includes pages
from www.whitepages.com and www.ancestry.com. The whitepages.com
printout contains eight listings for VAULTZ. The printout from
www.ancestry.com shows about 600 total listings for VAULTZ in
four main categories: "Census"; "Birth, Marriage, & Death";
"Directories"; and "Newspapers." Two of these categories list
information only from the 1800s and the early 1900s, i.e., the
“Census” category contains information for the years 1860 to
1930, and the "Newspapers" category contains information for the
years 1875 to 1914. About two-thirds of the total listings fall
into those two categories. Obviously, census and newspaper
evidence from over a hundred years ago does not reflect either
current use as a surname or current perception of the term as a
surname. While the other two databases ("Birth, Marriage and

3 In reviewing this evidence, we have disregarded multiple references
to the same individuals in different Nexis stories or on different
Internet websites.

Ser No. 76543788
4
Death" and "Directories") contain more recent occurrences, as
applicant points out, there appear to be a number of duplicative
listings within and/or between those two categories.
Accordingly, we have assumed that the "Directories" database
includes the names of individuals covered in the other database.
The "Directories" database shows 35 listings for VAULTZ. We note
that 20 of those individuals are located in Louisiana.
Other Internet evidence submitted by the examining attorney
consists of a Google search summary identifying four individuals
with the name VAULTZ and a number of websites each containing one
listing for VAULTZ.4 Much of this evidence is of little
probative value because the extent of public exposure to websites
such as those hosting message boards or family reunions is likely
to be quite limited.
By the examining attorney's own count, there are roughly a
total of 60 listings of VAULTZ as a surname, in a country of over
290 million people. It is clear that VAULTZ is rare surname.5
Further, the evidence as a whole does not convince us that more
than a small segment of the general public has been exposed to
the surname meaning of this term.

4 We have not considered websites with missing URLs, websites in
foreign languages, and multiple references to the same individuals on
different websites.

5 We also note that applicant has submitted the relevant pages from the
White Pages for Cleveland, Ohio (where applicant is located) and
Northern Virginia, showing no listings for the name VAULTZ.
Ser No. 76543788
5
It is true, as the examining attorney points out, that even
a rare surname is unregistrable if its primary significance to
purchasers is as a surname. In re Industrie Pirelli Societa per
Azioni, 9 USPQ2d 1564 (TTAB 1988). However, the rarer the
surname, the less likely it is that the term will be perceived as
primarily merely a surname. In re Garan Inc., 3 USPQ2d 1537
(TTAB 1987).
As to the second factor, applicant has submitted a
declaration by its chief operating officer, Daniel Perella,
stating that no one associated with applicant has the surname
VAULTZ.
The third factor is whether the term has another recognized
meaning. While the examining attorney emphasizes the lack of a
dictionary definition for VAULTZ,6 the analysis does not end
there. Applicant argues that VAULTZ is suggestive term in
relation to its goods, purses. In this regard, applicant has
submitted a dictionary definition of "vault" as meaning, "a room
or compartment, often built of steel, for the safekeeping of
valuables: a bank vault."7 This would suggest that the purses

6 The examining attorney asks the Board to take judicial notice of the
printout attached to her brief from www.onelook.com showing no entry
for "vaultz." This Internet evidence is untimely and not appropriate
for judicial notice. There is no indication as to what particular
dictionaries are contained on the website or whether any of the
dictionaries exist in printed form. See In re Total Quality Group Inc.,
51 USPQ2d 1474 (TTAB 1999).
7 The American Heritage Dictionary of the English Language, Third
Edition (1992).
Ser No. 76543788
6
sold under the mark will be solidly constructed and contain
certain features that will protect their contents. A vault is
used for storing valuables, and a purse stores the owner's
valuables. We find this to be a very plausible meaning of the
term in relation to applicant's goods. Thus, VAULTZ, the
phonetic equivalent of "vaults," does have another meaning in
relation to applicant's goods.
Finally, we consider whether VAULTZ has the look and sound
of a surname. As stated in Ex parte Rivera Watch Corp., 106 USPQ
145, 149 (Comm'r Pats. 1955):
There are some names which by their very nature have
only a surname significance even though they are
rare surnames. "Seidenberg," if rare, would be in
this class. And there are others which have no
meaning--well known or otherwise--and are in fact
surnames which do not, when applied to goods as
trademarks, create the impression of being surnames.

While the examining attorney argues that VAULTZ has the
look, feel and pronunciation of a surname, there is no evidence
properly of record to support this contention.8 Further, because
VAULTZ is the phonetic equivalent of a suggestive term, it would
not be perceived as a surname, and thus would not have the look

8 The examining attorney attached to her brief a printout from
www.rhymezone.com to show that other surnames, in particular, "Shultz"
and "Holtz" end in "ltz." This evidence is improper subject matter for
judicial notice. Nevertheless, even if we considered the evidence, it
would not be persuasive. The existence of two other surnames, one of
which itself is identified as a rare surname, does not convince us that
"ltz" is a typical structure of a surname or that any term ending in
"ltz," for example BOLTZ for a hardware store or COLTZ for a horse
farm, would be perceived as a surname.
Ser No. 76543788
7
or sound of a surname. Instead, VAULTZ has the look and feel of
a misspelling of the non-surname word "vaults."
We find that VAULTZ falls into the category of terms which
are surnames but which, because of its rarity and suggestiveness
in relation to applicant's goods, would not create the impression
of being a surname.
Decision: The refusal to register under Section 2(e)(4) of
the Trademark Act is reversed.