Kerridge Commercial Systems Limited

Trademark Trial and Appeal Board

Aug 9, 2019

87383302 (T.T.A.B. Aug. 9, 2019)

This Opinion is Not a
Precedent of the TTAB

Mailed: August 9, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Kerridge Commercial Systems Limited
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Application Serial No. 87383302
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Trevor P. Schmidt, Hutchison, PLLC
for Kerridge Commercial Systems Limited
Doritt Carroll, Trademark Examining Attorney, Law Office 116,
Christine Cooper, Managing Attorney.
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Before Zervas, Adlin, and Dunn,
Administrative Trademark Judges.

Opinion by Dunn, Administrative Trademark Judge:
Kerridge Commercial Systems Limited (“Applicant”) seeks registration pursuant
to Trademark Act Sections 1(b) and 44(e), 15 U.S.C § 1051(b) and 1126(e), of the mark
KERRIDGE COMMERCIAL SYSTEMS (in standard characters, COMMERCIAL
SYSTEMS disclaimed) for various goods and services, all for use in the distribution,
wholesale, merchant and retail industries.1

1 The goods and services for which Applicant seeks registration are:
International Class 9
Computer software for managing sales activities, inventory, customer relationships, financial
management and performing data analytics in the distribution, wholesale, merchant and
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The Examining Attorney refused registration on the ground that KERRIDGE is
“primarily merely a surname” under Section 2(e)(4) of the Trademark Act. After the
refusal became final, Applicant appealed, and Applicant and the Examining Attorney
filed briefs. We affirm the refusal to register.
EVIDENTIARY MATTERS
i. Screenshot lacking URL and date
The Examining Attorney attaches a screenshot to her Final Office Action as
“evidence that KERRIDGE is the name of the applicant’s founder, which the

retail industries; computer software to facilitate communications between buyers and
suppliers, generate customized price lists for customers, generate invoices, process orders
and payments for use in the distribution, wholesale, merchant and retail industries;
computer software for customer relationship management and financial accounting in the
distribution, wholesale, merchant and retail industries

International Class 35
Business consulting and accounting services relating to the distribution, wholesale, merchant
and retail industries; business administration services relating to the distribution, wholesale,
merchant and retail industries

International Class 36
Financial services, namely financial transaction and payment processing services, namely,
providing secure commercial transactions and payment options relating to the distribution,
wholesale, merchant and retail industries

International Class 42
Computer services, namely cloud hosting provider services and electronic data storage;
computer software services, namely, providing temporary use of on-line non-downloadable
software for managing sales activities, inventory, customer relationships, financial
management and performing data analytics in the distribution, wholesale, merchant and
retail industries; computer software services, namely, providing temporary use of online non-
downloadable software to facilitate communications between buyers and suppliers, generate
customized price lists for customers, generate invoices, process orders and payments relating
to the distribution, wholesale, merchant and retail industries; and computer software
services, namely, providing temporary use of online non-downloadable software for customer
relationship management and financial accounting in the distribution, wholesale, merchant
and retail industries

Application Serial No. 87383302
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examining attorney attaches as SnagIt – Kerridge.” (January 9, 2018 Final Office
Action, p. 11). The screenshot, which states that Applicant was founded in 1907 by
F.W. Kerridge, does not have a URL or a date. Applicant contends that “this site is
not maintained by, or associated with, Applicant …. [and] Applicant attempted to
review the site referenced by the Examining Attorney in the final Office action and
the listing is not available. A direct search of Wikipedia similarly did not generate
any results.” Because the Examining Attorney’s screenshot does not include the URL
or date of access, and Applicant has objected to its consideration, we sustain
Applicant’s objection and do not consider the screenshot.2 See In re I-Coat Company,
LLC, 126 USPQ2d 1730, 1733 (TTAB 2018) (“The requirement that materials printed
from websites must include a date and source/URL applies equally to evidence
submitted by examining attorneys in ex parte cases as it does to parties involved
in inter partes cases because it ensures that an applicant can verify the information
presented in the case.”); In re Mueller Sports Medicine, Inc., 126 USPQ2d 1584, 1587
(TTAB 2018) (“Moreover, in view of the TMEP’s extension to examining attorneys of
the requirements set forth in Safer v. OMS for the URL and date to be displayed on
website excerpts, we further extend these requirements to both examining attorneys
and applicants in ex parte proceedings.”); Trademark Manual of Examining
Procedure (TMEP) §1208.03 (2019) (“If an examining attorney does not include the

2 The Examining Attorney maintains that Applicant does not dispute that Applicant’s
founder bore the surname Kerridge. (6 TTABVUE 5). We disagree with this characterization
because the Examining Attorney did not ask Applicant or offer evidence to show that
Applicant’s founder was named Kerridge.
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URL and the date when the Internet evidence was accessed or printed and the
applicant objects, the Board will not consider the material.”).
ii. Evidence submitted with appeal briefs
Applicant submitted with its brief two exhibits from Wikiwand and Wikipedia
(with date and URL) showing that searches for “Kerridge Commercial Systems”
produced no results, and a screenshot (lacking date and URL) showing information
about Kerridge, a hamlet in the United Kingdom. Because the record in the
application should be complete prior to the filing of an appeal, Applicant’s evidence
is late and will not be considered. Trademark Rule 2.142(d), 37 C.F.R. § 20142(d).
The Examining Attorney’s appeal brief also includes two exhibits which were not
submitted prior to the notice of appeal, namely, the results of a second
Whitepages.com search for the term KERRIDGE and dictionary excerpts; the
Examining Attorney requests that we take judicial notice of the exhibits. Online
search results are not the appropriate subject of judicial notice. See In re Viventia
Biotech Inc., 80 USPQ2d 1376, 1377 (TTAB 2006); TBMP 1208.04 and 704.12. While
the Board has the discretion to take judicial notice of dictionary definitions, the Board
is reluctant to exercise this discretion where, as here, Applicant has no opportunity
to counter the evidence. Fed. R. Evid. 201; TBMP 1208.04.
LEGAL STANDARD FOR SURNAME REFUSAL
Section 2(e)(4) of the Trademark Act, 15 U.S.C. § 1052(e)(4), precludes registration
of a mark on the Principal Register that is ”primarily merely a surname,” without a
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showing of acquired distinctiveness under Section 2(f) of the Act, 15 U.S.C. 1052(f).3
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 Earnhardt v. Kerry Earnhardt, Inc., 846 F.3d 1374,
123 USPQ2d 1411, 13 (Fed. Cir. 2017); In re Hutchinson Tech. Inc., 852 F.2d 552, 7
USPQ2d 1490, 1492 (Fed. Cir. 1988); In re Weiss Watch Company, Inc., 123 USPQ2d
1200, 1201 (TTAB 2017).
The Board’s primary reviewing court has long held that, in determining whether
the purchasing public would perceive a proposed mark as primarily merely a
surname, the Board may consider: 1) whether the applicant adopted a principal’s
name and used it in a way that revealed its surname significance; 2) whether the
term has a nonsurname “ordinary language” meaning; and 3) the extent to which the
term is used by others as a surname. In re Etablissements Darty et Fils, 759 F.2d 15,
225 USPQ 652, 653 (Fed. Cir. 1985). These considerations are not exclusive and any
of these circumstances singly or in combination and any other relevant circumstances
may be relevant in a particular case. See Id. (considering whether mark “is used in
the company name in a manner which reveals its surname significance.”); In re
Harris-Intertype Corp., 518 F.2d 629, 186 USPQ 238, 239 (CCPA 1975) (considering
whether there is “general acceptance [of HARRIS] as a given name.”); Earnhardt v.

3 The application is based on Applicant’s European Union registration and an allegation of a
bona fide intent to use the mark, and Applicant has not claimed or argued that the
KERRIDGE portion of its mark, or that its mark as a whole, has acquired distinctiveness in
the United States.
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Kerry Earnhardt, Inc., 123 USPQ2d at 1381 (considering “whether adding the
additional term to the surname altered the primary significance of the mark as a
whole to the purchasing public.”); In re Weiss Watch Co., 123 USPQ2d at 1204
(considering whether “ordinary American purchaser would stop and translate the
foreign word into its English equivalent”); Azeka Bldg. Corp. v. Azeka, 1?21 USPQ2d
1477, 1481 (TTAB 2017) (considering “ whether there is contextual use related
to surname significance”). There is “no hard and fast rule as to the amount of evidence
necessary to demonstrate that a mark is or is not primarily merely a surname.” In re
Standard Elektrik Lorenz A.G., 371 F.2d 870, 152 USPQ 563, 566 (CCPA 1967).
Accord, In re Eximius Coffee, LLC, 120 USPQ 2d 1276, 1278 (TTAB 2016) (“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.”).
i. Primary significance of KERRIDGE
The record establishes that the term KERRIDGE is a surname. In the first Office
action, the Examining Attorney states “Please see the attached evidence from
WhitePages.com, establishing the surname significance of KERRIDGE. This evidence
shows the applied-for mark appearing almost 500 times as a surname in a nationwide
phone directory of names.” June 16, 2017 Office Action, p. 8-13.4 Applicant argues

4 The record includes a description of the Whitepages.com website as a “people search engine”
which allows the user to “lookup phone numbers, find mobile numbers, do an address search.”
January 9, 2018 Final Refusal, p. 5. The Whitepages.com website allows a geographically
restricted search for terms such as names. See In re Hollywood Lawyers Online, 110 USPQ2d
1852, 1856 (TTAB 2014) (describing evidence as “Results from a search in the online white
pages showing addresses around the United States for various businesses that include
Hollywood in their name, e.g., Hollywood Video (Washington DC), Planet Hollywood
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that the search results “were not reflective of the use of ‘Kerridge’ as a surname” and
contends that the results may not be limited to the identical term Kerridge. More
specifically, Applicant submitted its search results for the same term and states that
it yielded “a similar results page, but clicking beyond the first page indicates that
some of the ‘results’ relate to surnames that may sound similar to Kerridge or have
originated from a similar derivation but do not reflect an actual use of Kerridge as a
surname.” December 18, 2017 Response to Office Action, p. 5-8. Suffice it to say, the
competing search results are not identical, and Applicant’s search results including
phonetic equivalents to Kerridge do not demonstrate that the Examining Attorney’s
search results also include phonetic equivalents. Most significantly, both searches
reveal individuals in the United States who have the surname KERRIDGE.
With regard to the Examining Attorney’s White Pages evidence, we note the
depicted “filter by state” sidebar shows results for names outside of the United
States. As shown below, the “filter by state” sidebar lists 19 states and two
Canadian provinces (Alberta and British Columbia) and the range of results found
in the state or province (1-10, 10-50, 50-100, 100-200). The sidebar from the
Examining Attorney’s search is shown here:

(Washington DC), Hollywood Smile (Columbus, OH), Hollywood Casino (Columbus, OH),
Hollywood Nails (Miami, FL), Hollywood Tans (Atlanta, GA) (www.whitepages.com).”).
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Only surname use in the United States is relevant to our determination. See
Société Civile Des Domaines Dourthe Frères v. S.A. Consortium Vinicole De Bordeaux
Et De La Gironde, 6 USPQ2d 1205, 1208 (TTAB 1988) (“The fact that DOURTHE is
recognized as a surname in France has no bearing on its right to be registered in the
United States.”); In re Wickuler-Kupper-Brauerei KGaA, 221 USPQ 469, 470 n. 2
(TTAB 1983) (“Berlin (Germany) telephone directory made of record by a previous
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Examining Attorney is of little probative value.”). Because the Examining Attorney’s
search included Canadians with the name Kerridge, it does not appear likely that
there are 454 individuals in the United States with the surname “Kerridge.”
However, at a minimum, the sidebar shows at least the following results for the
name “Kerridge”; one result in 13 states (Alabama, Arizona, Connecticut, Delaware,
Georgia, Idaho, Illinois, Indiana, Louisiana, Massachusetts, Mississippi, Missouri,
and New Jersey), at least 10 results in 3 states (California, Colorado, and Maryland),
at least 50 results in 1 state (Florida), and at least 100 results in 1 state (Michigan).
Thus, at a minimum, the Whitepages.com results establish at least 193 results for
“Kerridge” from 18 different U.S. states.
Applicant argues that this is an insignificant portion of the U.S. population, and
cites a Google search page showing “323.1 million (2016)” as the result of searching
“current population of the United States.” (December 18, 2017 Response to Office
Action, p. 10). The relative rareness of a name is not necessarily relevant ”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.” In re Weiss Watch
Co., 123 USPQ2d 1200, 1203 (TTAB 2017) quoting In re Gregory, 70 USPQ2d 1792,
1795 (TTAB 2004). In fact, even surnames less common than KERRIDGE have been
found to be primarily merely a surname in certain cases. See In re Beds & Bars
Limited, 122 USPQ2d 1546 (TTAB 2017) (5 individuals named BELUSHI); In re
Adlon Brand GmbH & Co. KG, 120 USPQ2d 1717, 1720 (TTAB 2016) (75 individuals
named ADLON); In re Eximius Coffee, LLC, 120 USPQ2d at 1280 (233 people with
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the surname ALDECO); In re Picone, 221 USPQ 93, 95 (TTAB 1984) (112 phone
directory listings for PICONE); In re Cazes, 21 USPQ2d 1796, 1796 (TTAB 1991) (23
phone listings for LIPP); In re Rebo High Definition Studio Inc., 15 USPQ2d 1313,
1314 (TTAB 1990) (6 phone directory listings for REBO). The Federal Circuit has
cautioned against setting any numerical requirement for a surname refusal. See In
re Etablissements Darty et Fils, 225 USPQ at 653 (“The quantum of evidence which
was persuasive against finding surname significance in one case may be insufficient
in another because of differences in the names themselves.”). Accord In re Adlon
Brand GmbH & Co. KG, 120 USPQ2d at 1721 (“This strictly numerical approach to
a surname analysis has been squarely rejected.”).
Applicant points out that there is no record evidence demonstrating an association
between Applicant and any individual named Kerridge. Applicant submitted its
website page “About Us”, with a listing of “Management Team” which includes no
individuals named Kerridge. (December 18, 2017 response to Office Action, p. 12-15).
If there was an association between a person named Kerridge and Applicant’s
business, and that association were promoted to the public, it would enhance the
public's perception of the term as a surname. In re Integrated Embedded, 120
USPQ2d 1504, 1507 (TTAB 2016) (where applicant’s promotional materials touted
the credentials and accomplishments of its founder Mr. Barr, this reinforced the
likely public perception of BARR as a surname.) However, the converse is not true.
The absence of a person named Kerridge in Applicant's current management does
not, in itself, reduce the likelihood that the public would perceive the mark as a
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surname. In re Adlon Brand GmbH & Co. KG, 120 USPQ2d at 1724; In re Piano
Factory Group, Inc., 85 USPQ2d 1522, 1524 (TTAB 2006).
We determine whether the purchasing public for Applicant's goods and services is
more likely to perceive KERRIDGE as merely a surname or as something else. See In
re Eximus Coffee, 120 USPQ2d at 1283; Miller v. Miller, 105 USPQ2d 1615, 1620
(TTAB 2013); In re United Distillers plc, 56 USPQ2d 1220, 1221 (TTAB 2000). The
Examining Attorney made of record evidence that the terms BERRIDGE,
DERRIDGE, FERRIDGE, and SERRIDGE, identical to KERRIDGE except for the
first letter, also are surnames. The evidence does not show any of the surnames to be
very common. In addition, the Board has found whether a term has the structure and
pronunciation of a surname to be a “decidedly subjective” inquiry. In re Eximius
Coffee, L.L.C, 120 USPQ2d at 1280. Accordingly, we find this evidence, at best, offers
some corroboration of the Whitepages.com evidence that the primary significance of
KERRIDGE is as a surname.
Applicant argues that KERRIDGE has phonetic and visual similarities to
commonly used non-surname terms such as porridge, courage, and carriage, and to
geographic terms such as Cambridge and Woodbridge.5 We disagree that the term
KERRIDGE is likely to be mistaken for one of these terms, or to have the same

5 Applicant also notes (4 TTABVUE 11) that “the suffix ‘ridge’ as used in ‘Kerridge’ further
brings to mind geographic features and could suggest to the purchasing public a specific
mountain ridge (i.e. KER RIDGE).” Because there is no record evidence that the term KER
has a separate meaning, we see no basis for a prospective consumer to consider KERRIDGE
as two terms joined.
.
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ordinary word or geographic significance. The terms “porridge,” “courage,” “carriage,”
“Cambridge” and “Woodbridge” look dissimilar to Kerridge, and there is no evidence
to support a conclusion that the one similarity in how some of the words sound would
result in the term KERRIDGE being perceived as something other than a surname.
In sum, the record includes no evidence that the term KERRIDGE has any
significance other than as a surname.

ii. Additional wording “COMMERCIAL SYSTEMS” does not
alter primary significance of KERRIDGE as merely a surname

To evaluate whether the commercial impression of a mark that combines a
surname with a second term is still primarily merely the surname, the Board must
determine whether the primary significance of the mark as a whole in connection
with the recited goods and services is that of the surname. Earnhardt v. Kerry
Earnhardt, Inc., 123 USPQ2d at 1413. More specifically, the mark must be considered
“in its entirety” rather than merely “consider[ing] the mark as two separate parts.”
Id., quoting In re Hutchinson Technology Inc., 852 F.2d 552, 7 USPQ2D 1490, 1492
(Fed. Cir. 1988). A key element in such an inquiry is determining the relative
distinctiveness of the second term in the mark. Id.; accord, In re Weiss Watch Co., 123
USPQ2d at 1206.
Here, Applicant seeks to register the mark KERRIDGE COMMERCIAL
SYSTEMS for various goods and services for use in the distribution, wholesale,
merchant and retail industries. In refusing registration because the mark
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KERRIDGE COMMERCIAL SYSTEMS is primarily merely a surname, the
Examining Attorney required a disclaimer of COMMERCIAL SYSTEMS, explaining:
Attached are dictionary definitions for “commercial” (relating to commerce or
business) and “systems” (a group of items working together). The applicant
offers various computer goods and services that work together in the
distribution industry. Thus, the applicant offers “commercial systems.”6

The Examining Attorney informed Applicant that “[c]ombining a surname with the
generic name (i.e. ‘commercial systems’) for the goods and services does not overcome
a mark’s surname significance.”
Applicant does not contest the requirement for a disclaimer, dispute the lack of
distinctiveness of the phrase COMMERCIAL SYSTEMS as applied to its goods and
services, or contend that the additional term COMMERCIAL SYSTEMS alters the
commercial impression of KERRIDGE. Applicant submitted the required disclaimer,
and thus admits that the term is merely descriptive of its goods and services. See In
re DNI Holdings Ltd., 77 USPQ2d 1435, 1442 (TTAB 2005) (“it has long been held
that the disclaimer of a term constitutes an admission of the merely descriptive
nature of that term … at the time of the disclaimer”). See also Quaker State Oil
Refining Corp. v. Quaker Oil Corp., 453 F.2d 1296, 172 USPQ 361, 363 (CCPA 1972)
(disclaimer is an admission of descriptiveness at the time the disclaimer was made).
In its appeal brief, Applicant contends the refusal should be withdrawn because

6 Among the several definitions in the record, the Examining Attorney refers to the definition
of “commercial” as “occupied with or engaged in commerce or work intended for commerce”
and “systems” as “a group of devices or artificial objects or an organization forming a network
especially for distributing something or serving a common purpose.” Merriam-Webster.com
(June 16, 2017 Office Action, p. 8 and 21).
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KERRIDGE is not primarily merely a surname, without addressing the additional
wording COMMERCIAL SYSTEMS.
The addition of the descriptive term COMMERCIAL SYSTEMS in the mark does
not detract from the primary significance of KERRIDGE. Based on the dictionary
definitions showing that COMMERCIAL SYSTEMS are devices and objects for
distribution and other common commercial purposes, the identification of Applicant’s
goods and services as used “in the distribution, wholesale, merchant and retail
industries,” and Applicant’s disclaimer of the term COMMERCIAL SYSTEMS in its
mark as applied to all of its goods and services, we find that the term COMMERCIAL
SYSTEMS when applied to Applicant’s goods and services working together in
commercial applications is a merely descriptive term for Applicant’s goods and
services. Where, as here, descriptive wording is appended to a surname, the
combination when viewed as a whole in the context of the Applicant's goods will
generally be considered to be primarily merely a surname under Section 2(e)(4).
Azeka Bldg. Corp. v. Azeka, 122 USPQ2d at 1482 n.9 (TTAB 2017) (AZEKA'S RIBS
primarily merely a surname for barbeque sauce); In re Hamilton Pharms. Ltd., 27
USPQ2d 1939 (TTAB 1993) (HAMILTON PHARMACEUTICALS primarily merely a
surname for pharmaceutical products); In re Cazes, 21 USPQ2d 1796 (TTAB 1991)
(BRASSERIE LIPP primarily merely a surname for restaurant services); In re
Woolley's Petite Suites, 18 USPQ2d 1810 (TTAB 1991) (holding WOOLLEY'S PETITE
SUITES primarily merely a surname for hotel and motel services).
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After consideration of all the arguments and evidence presented, we find that the
primary significance of KERRIDGE is as a surname, and that, because the additional
words COMMERCIAL SYSTEMS are merely descriptive and disclaimed, the
proposed mark KERRIDGE COMMERCIAL SYSTEMS is primarily merely a
surname.
DECISION
The refusal to register Applicant's mark under Section 2(e)(4) of the Act is affirmed.