Riggs & Forsythe Specialty Beverages Ltd.

Trademark Trial and Appeal Board

Jul 15, 1999

No. 75135828 (T.T.A.B. Jul. 15, 1999)

Paper No. 10
HRW
THIS DISPOSITION IS NOT CITABLE AS PRECEDENT OF THE TTAB
JULY 15, 99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Riggs & Forsythe Specialty Beverages Limited
________
Serial No. 75/135,828
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Gary R. Gillen of Wildman, Harrold, Allen & Dixon for Riggs
& Forsythe Specialty Beverages Limited.
Mark T. Mullen, Trademark Examining Attorney, Law Office
101 (Chris Wells, Acting Managing Attorney).
_______
Before Quinn, Hohein and Wendel, Administrative Trademark
Judges.
Opinion by Wendel, Administrative Trademark Judge:
Riggs & Forsythe Specialty Beverages Limited has filed
an application to register the mark “RIGGS” for soft
drinks.1
Registration has been finally refused on the ground
that the mark is primarily merely a surname under Section

1 Serial No. 75/135,828, filed July 18, 1996, based on a bona
fide intention to use the mark in commerce. The mark in the
drawing as originally filed was RIGGS, but was changed by
amendment to “RIGGS.”
Ser No. 75/135,828
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2(e)(4) of the Trademark Act. Applicant and the Examining
Attorney have filed briefs, but an oral hearing was not
requested.
The Examining Attorney argues that he has met the
burden of establishing a prima facie case that the mark
“RIGGS” is primarily merely a surname by the evidence of
record of 11,629 listings for the surname Riggs obtained
from the PHONEDISC USA computer database. In addition, the
Examining Attorney has attached to his brief dictionary
pages showing that there is no listing of “riggs” as an
ordinary word or as a geographic term, and accordingly, no
recognized alternative meaning for RIGGS, as might remove
the term from classification as primarily merely a surname.2
Applicant’s major contention is that surnames do not
bear quotation marks. According to applicant, the coupling
of a “distinctive design element, such as quotation marks,”
with the name RIGGS results in a mark which cannot be
considered primarily merely a surname, citing In re Benthin
Management GmbH, 37 USPQ2d 1332 (TTAB 1995). Applicant
further argues that the PHONEDISC listings alone cannot be

2 This evidence was not made of record by the Examining Attorney
prior to the filing of the appeal and normally would not be
considered by the Board. Trademark Rule 2.142(d). Since,
however, the Board may take judicial notice of dictionary
definitions, we have taken the pages under consideration. See
Ser No. 75/135,828
3
relied upon to establish that a mark is primarily merely a
surname, particularly when none of the listings includes
quotation marks. Applicant insists that there has been no
showing that the term “RIGGS” might not have some other
meaning to the public, such as a derivative of the word
“rigging” or a fanciful spelling of the word “rigs.” As a
result, applicant contends that sufficient ambiguity exists
to raise doubt as to whether the public perception of the
mark would primarily be that of a surname, which doubt
should be resolved in applicant’s favor.
In the Benthin case, supra, the Board set forth five
factors to be taken under consideration in determining
whether a mark would be perceived as primarily merely a
surname. The first factor is the degree of rareness of the
surname. Here we find the over 11,000 listings for the
name Riggs adequate to show that it does not fall within
the classification of being a “rare” surname. Applicant
has made no argument to the contrary with respect to the
name alone.
The second factor is whether any person connected with
applicant has been shown to have this surname. While
applicant argues that there is no person connected with its

Marcal Paper Mills, Inc. v. American Can Co., 212 USPQ 852 (TTAB
1981).
Ser No. 75/135,828
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corporation having this name, we cannot but note that the
corporate name itself is the combination of two surnames,
Riggs & Forsythe, a combination which we believe would be
recognized as such by the public in general.
The third factor is whether there is any “recognized
meaning other than that of a surname.” The dictionary
pages introduced by the Examining Attorney show no listings
for “riggs” as a word or geographical term. Applicant’s
hypotheses as to other potential public perceptions of
“RIGGS” do not rise to the level of evidence of other
“recognized” meanings for the term. Similarly, applicant
has presented no evidence as to whether “RIGGS” would have
other than the “look and sound” of a surname, the fourth
factor to be taken under consideration.
Instead, applicant rests its case on the fifth factor,
namely, whether the stylized form in which the mark is
presented is sufficiently distinct to cause the mark to not
be perceived as primarily merely a surname. In Benthin,
the Board found the highly stylized manner of lettering of
the word BENTHIN created such a distinctive design element
that the mark as a whole would not be viewed primarily
merely as a surname. But here the only addition to the
word RIGGS is quotation marks, a common form of
punctuation. While these quotation marks might serve to
Ser No. 75/135,828
5
set off the mark, we cannot agree with applicant that the
addition of quotation marks to the surname transforms the
surname into a distinctive designation having a
significance other than a surname. See In re Ervin, 1
USPQ2d 1665 (TTAB 1986) [use of slanting script and
quotation marks in mark THE “ORIGINAL” does not alter clear
meaning of the dominating word matter]; In re Burlington
Industries, Inc., 196 USPQ 718 (TTAB 1977) [exclamation
point in CHAMPAGNE! fails to impart meaning other than name
of color to mark].
Accordingly, we find that use by applicant of
punctuation marks in the mark “RIGGS” is insufficient to
create a commercial impression separate and apart from the
impression made by the word RIGGS as being primarily merely
a surname. See In re Guilford Mills, Inc., 33 USPQ2d 1042
(TTAB 1994) [display of otherwise unregistrable matter is
not registrable on Principal Register unless design
features create commercial impression separate and apart
from the impression made by the words].
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Decision: The refusal to register the mark “RIGGS”
under Section 2(e)(4) is affirmed.
T. J. Quinn
G. D. Hohein
H. R. Wendel
Trademark Administrative Judges,
Trademark Trial and Appeal Board
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