Keo Ltd.

Trademark Trial and Appeal Board

May 3, 2001

No. 75612931 (T.T.A.B. May. 3, 2001)

5/3/01 Paper No. 9
CEW
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Keo Limited
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Serial No. 75/612,931
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John M. Keene of Graham, Campaign for applicant.
Carol A. Spils, Trademark Examining Attorney, Law Office 101
(Jerry Price, Managing Attorney).
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Before Quinn, Walters and Bucher, Administrative Trademark
Judges.
Opinion by Walters, Administrative Trademark Judge:
Keo Limited has filed a trademark application to
register the mark KEO for “brandy, namely, Cyprus brandy.”1
The Trademark Examining Attorney has issued a final refusal
to register on the ground that the mark, KEO, is primarily

1 Serial No. 75/612,931, in International Class 33, filed December 29,
1998, based on use of the mark in commerce, alleging first use and use
in commerce as of 1962. The Examining Attorney had issued a final
requirement to amend the identification of goods. In its brief
applicant offered to adopt an identification of goods apparently
suggested by the Examining Attorney, namely, “brandy from Cyprus.” The
Examining Attorney did not comment on applicant’s offer in her brief –
she merely withdrew the final requirement for an amendment to the
identification of goods. Therefore, we consider the identification
stated in the body of our opinion to be the identification of goods of
record. We add that we see no substantive difference between this
identification of goods and “brandy from Cyprus.”
DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Serial No. 75/612,931
2
merely a surname, under Section 2(e)(4) of the Trademark
Act, 15 U.S.C. 1052(e)(4).
Applicant has appealed. Both applicant and the
Examining Attorney have filed briefs, but an oral hearing
was not requested. We reverse the refusal to register.
It is well established that the Office has the burden
of establishing a prima facie case that a term is primarily
merely a surname, and that the test for determining whether
a mark is primarily merely a surname is the primary
significance of the mark as a whole to the purchasing
public. In re BDH Two Inc., 26 USPQ2d 1556 (TTAB 1993) and
cases cited therein. As stated by our principal reviewing
court, the question of whether a mark is primarily merely a
surname can only be made on a case-by-case basis. In
re Etablissements Darty et Fils, 759 F.2d 15, 225 USPQ 652,
653 (Fed. Cir. 1985).
It is the Examining Attorney's position that the
primary significance of applicant's mark is that of a
surname. The Examining Attorney has made of record surname
listings from Phonedisc Powerfinder USA One 1998 (4th
edition), a nationwide computerized database of names and
phone numbers, showing 357 individuals, out of 115 million
listings, with this surname.
Based on this record, we can conclude only that "Keo"
falls within the category of being a relatively rare
Serial No. 75/612,931
3
surname. See In re Garan Inc., 3 USPQ2d 1537, 1540 (TTAB
1987); and In re Sava Research Corp., 32 USPQ2d 1380, 1381
(TTAB 1994). We hasten to add, however, that there is no
minimum or "magic" number of directory listings required to
establish a prima facie case for refusal of registration
under Section 2(e)(4). In re Cazes, 21 USPQ2d 1796 (TTAB
1991).
We find nothing of record in this case to raise the
level of frequency of usage to that of a common surname or
even close thereto. However, even rare surnames are not
registrable if the primary significance of the term to the
public is that of a surname. See In re Rebo High Definition
Studio Inc., 15 USPQ2d 1314 (TTAB 1990); In re Industrie
Pirelli, 9 USPQ2d 1564, 1566 (TTAB 1988).
Thus, we turn to the other factors relevant to
determining the significance of the term to the public. We
note, first, that applicant states that there is no
individual connected to applicant with the surname of “Keo.”
In re Monotype Corp., 14 USPQ2d 1070, 1071 (TTAB 1989). See
also Sava, supra. Additionally, we find that the "structure
and pronunciation,” or the "look and sound" of KEO is not
that of a surname.2 In re Industrie Pirelli, supra; and

2 Applicant argues incorrectly that its use of KEO as a trademark on its
labels over many years obviates any finding that KEO would be perceived
as a surname. Applicant’s argument speaks to the question of acquired
distinctiveness which is not before us.
Serial No. 75/612,931
4
Sava, supra. This conclusion is supported by applicant’s
statement that KEO is an acronym for its company name in
Greek, which is Kipriaki Eteria Oinon. As stated in
Industrie Pirelli, "certain rare surnames look like
surnames, and certain rare surnames do not and that
'Pirelli' falls into the former category, while 'Kodak'
falls into the later." 9 USPQ2d at 1566. All of these
factors taken together support the conclusion that the
Examining Attorney has not established that the primary
significance of KEO to the public is as a surname.
The single factor in this case that favors a finding
that the primary significance of KEO to the public is as a
surname is the fact that the record is devoid of evidence
that the term "Keo" has any recognized meanings other than
that of a surname. In re BDH Two Inc., 26 USPQ2d 1556, 1558
(TTAB 1993). See also Sava, supra. However, this factor is
significantly outweighed by those factors addressed infra.
Decision: The refusal under Section 2(e)(4) of the Act
is reversed.