900 F Street Owner LLC

This Opinion is Not a
Precedent of the TTAB

Mailed: January 3, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re 900 F Street Owner LLC
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Serial Nos. 87464573 and 874645741
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Christopher R. Chase of Frankfurt Kurnit Klein & Selz, P.C.,
for 900 F Street Owner LLC

Robert Clark, Trademark Examining Attorney, Law Office 101,
Ronald R. Sussman, Managing Attorney.

_____

Before Lykos, Greenbaum and Lynch,
Administrative Trademark Judges.

Opinion by Lynch, Administrative Trademark Judge:

In two separate applications, 900 F Street Owner LLC (“Applicant”) seeks to

register on the Principal Register the mark RIGGS in standard characters for “Hotel

services; restaurant and bar services” in International Class 432 and for “Health spa

services, namely, cosmetic body care services; beauty spa services, namely, cosmetic

1 Because the cases have common questions of fact and law, the appeals are hereby
consolidated. See, e.g., In re Anderson, 101 USPQ2d 1912, 1915 (TTAB 2012) (The Board sua
sponte consolidated two appeals). Citations to the TSDR record are the same for both cases.
2Application Serial No. 87464573 was filed May 25, 2017 based on a declared intention to
use the mark in commerce under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b).
Serial Nos. 87464573 and 87464574

body care; day spa services, namely, providing massage therapy, facials, reflexology

services, and health spa services for health and wellness of the mind, body and spirit”

in International Class 44.3 The Examining Attorney has finally refused registration

on the ground that the proposed mark is primarily merely a surname under Section

2(e)(4), 15 U.S.C. § 1052(e)(4).

Under that section of the Trademark Act, “No trademark by which the goods of

the applicant may be distinguished from the goods [or services] of others shall be

refused registration on the principal register on account of its nature unless it … (e)

Consists of a mark which… (4) is primarily merely a surname ….” Id. A term is

primarily merely a surname if, as 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. Earnhardt v. Kerry Earnhardt, Inc., 864 F.3d 1374, 123 USPQ2d 1411,

1413 (Fed. Cir. 2017); In re Beds & Bars Ltd., 122 USPQ2d 1546, 1548 (TTAB 2017)

(citing In re Etablissements Darty et Fils, 759 F.2d 15, 225 USPQ 652, 653 (Fed. Cir.

1985)).

Whether the primary significance of a term is merely that of a surname is a

question of fact that must be resolved on a case-by-case basis, considering the record

as a whole. In re Olin Corp., 124 USPQ2d 1327, 1330 (TTAB 2017); Azeka Bldg. Corp.

v. Azeka, 122 USPQ2d 1477, 1480 (TTAB 2017). Probative considerations include: the

extent to which the term is exposed to the public as a surname; whether the term is

3Application Serial No. 87464574 was filed May 25, 2017 based on a declared intention to
use the mark in commerce under Section 1(b) of the Trademark Act, 15 U.S.C. §1051(b).

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the surname of anyone connected with the applicant; whether there is contextual use

related to surname significance; whether the term has any recognized meaning other

than as a surname; and whether the term has the structure and pronunciation of a

surname. Olin Corp., 124 USPQ2d at 1330; Beds & Bars, 122 USPQ2d at 1548.

“These considerations are not exclusive, and any of these circumstances singly or in

combination and any other relevant facts may shape the analysis in a particular

case.” Olin Corp., 124 USPQ2d at 1330.

A. Whether RIGGS Is a Rare Surname

We first consider the frequency of, and public exposure to, the term RIGGS as a

surname. See Darty, 225 USPQ at 653. Even a rare surname may be held primarily

merely a surname if its primary significance to purchasers is that of a surname. “The

relevant question is not simply how frequently a surname appears, however, but

whether the purchasing public for Applicant’s services [and goods] is more likely to

perceive Applicant’s proposed mark as a surname rather than as anything else.” Beds

& Bars, Ltd., 122 USPQ2d at 1551.

Relevant evidence introduced by the Examining Attorney includes the following:

• A LexisNexis public records search for the surname RIGGS that
returned 48,687 results. The first 100 results were made of record and
include addresses that span the U.S.4

• A Wikipedia entry for Martin Riggs, “a fictional character from the
Lethal Weapon franchise. He is played in all four films by Mel Gibson.”5

4 August 31, 2017 Office Action at 2-13.
5 December 4, 2017 Office Action at 16-19 (Wikipedia.org).

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• A Wikipedia entry for Bobby Riggs, a three-time World No. 1 tennis
player in the late 1930’s and the 1940’s, the winner of Wimbledon in
1939, and the U.S. National Champion in 1939 and 1941. He lost to
Billie Jean King in the 1973 match called the “Battle of the Sexes,”
shown on prime time television and characterized as “one of the most
famous tennis events of all time.”6

• A Wikipedia entry for Joe Riggs, an American professional mixed
martial artist and former World Extreme Cagefighting Middleweight
Champion.7

• A Wikipedia entry for Ransom Riggs, an American writer and filmmaker
“best known for the book Miss Peregrine’s Home for Peculiar Children,”
which was on the New York Times Best Seller List and was adapted into
a 2016 film. He also authored several other books.8

• A Wikipedia entry for Jerry Riggs, an American rock guitarist and
vocalist who played with the bands Lynx, Raggedy Ann, Riggs, the Pat
Travers Band, Bobby Friss Band, and Rock and Pop Masters.9

• A Wikipedia entry for Seth Riggs, “an American singer, actor and vocal
coach” who “has worked with performers such as Prince, Michael
Jackson, Stevie Wonder, Ray Charles, Madonna, Johnny Hallyday and
Barbra Streisand.”10

• A Wikipedia entry for Chandler Riggs, “an American actor, known for
his role as Carl Grimes on The Walking Dead” since 2010, which series,
the entry notes, “is the highest rated in cable television history and has
smashed all previous ratings records.”11

• A Wikipedia entry for Gerald Riggs, a former NFL player for the Atlanta
Falcons from 1982 to 1988, where he was the franchise’s all-time leading
rusher, and for the Washington Redskins from 1989 to 1991. The entry

6 Id. at 33-38.
7 Id. at 20-27.
8 Id. at 28-30.
9 Id. at 31-32.
10 Id. at 39-40.
11 Id. at 41-43.

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notes that his sons, Gerald Riggs, Jr. and Cody Riggs, also played in the
NFL.12

• A Wikipedia entry for Marlon Riggs, “a filmmaker, educator (professor),
poet, and gay rights activist” who “produced, wrote, and directed several
television documentaries,” including “Tongues Untied,” which
generated controversy that “sparked a national debate” when it aired on
American public television.13

Applicant contends, without pointing to any specific examples, that the

LexisNexis results may contain duplicative entries. While we “agree that the

probative value of the Lexis listings is limited for the reasons stated by Applicant,”

In re Eximius Coffee, LLC, 120 USPQ2d 1276, 1280 (TTAB 2016), we nonetheless

accord the evidence some probative value because a degree of duplication is to be

expected in this type of data compilation, and does not merit discounting the

compilation altogether. In assessing the record, we bear in mind the practicalities of

the somewhat limited resources available to USPTO examining attorneys. See, e.g.,

In re Pacer Tech., 338 F.3d 1348, 67 USPQ2d 1629, 1632 (Fed. Cir. 2003). The

evidence still provides a rough sense of the frequency of the name, and can be

compared to evidentiary showings from the same or similar sources in other surname

cases by the Board.

Applicant also criticizes the Wikipedia entries on the ground that “the ‘fame’ of

such individuals is questionable.”14 Certainly some of the subjects profiled appear

less famous than others, but several seem quite well known. While Applicant attacks

12 Id. at 44-45.
13 Id. at 46-50.
14 4 TTABVUE 13 (Applicant’s Brief).

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the entry for a fictional character, we find that evidence of a main character in a

popular movie franchise bearing the surname can contribute to consumer perception

of RIGGS as a surname. Cf. Eximius Coffee, LLC, 120 USPQ2d at 1281 (probative

evidence is that which shows public exposure to the term used as a surname). Overall,

the evidence persuasively shows consumer exposure to RIGGS as a surname. See In

re Adlon Brand GmbH & Co., 120 USPQ2d 1717, 1722 (TTAB 2016) (“what matters

is that through these media the public has been exposed to the term ADLON as a

surname”); In re Gregory, 70 USPQ2d 1792, 1795 (TTAB 2004) (ROGAN primarily

merely a surname based in part on broad exposure of public to politician, athletes,

actor and author with this surname).

Applicant introduced the U.S. Census Bureau “U.S. and World Population Clock”

showing the U.S. Population15 and compares the total number of people in the U.S.

to the number of people bearing the RIGGS surname to argue that the percentage is

extremely small.16 However, such a comparison with even the most common surname

would represent only a small fraction of the U.S. population, so we do not find this

argument convincing.

One recent Board determination that a surname was not rare and was primarily

merely a surname rested on an evidentiary showing less substantial than the

Examining Attorney’s in this case. In Olin Corp., where the LexisNexis public records

search returned only 7,552 hits, the Board relied on that and other evidence

15 November 30, 2017 Response to Office Action at 136 (census.gov).
16 4 TTABVUE 13 (Applicant’s Brief).

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comparable to the record in this case to conclude that “OLIN is not rarely encountered

as a surname, and therefore it is likely to be perceived by the public as having

surname significance.” Olin Corp., 124 USPQ2d at 1311. The numbers from the

public records database are much greater in this case, and the other evidence also is

persuasive.

Based on the record evidence, we find that RIGGS is not rarely encountered as a

surname, and therefore it is likely to be perceived by the public as having surname

significance.

B. Whether RIGGS Has a Recognized Meaning Other Than as a Surname

The Examining Attorney contends that RIGGS has no recognized meaning other

than as a surname, citing screenshots from Dictionary.com and the Columbia

Gazetteer of the World reflecting that no entry exists for RIGGS.17 Applicant argues

that RIGGS would be known by consumers as a reference to the Riggs Bank Building

in Washington D.C., where Applicant’s attorney states that the services will be

provided. In its Brief, Applicant states that it “will use the RIGGS mark in a way

such that it immediately creates an association with the historical bank building,”18

although Applicant points to no limitation in the application, no declaration and no

other evidence to support this assertion. According to Applicant, because the building

bearing that name is notable, as reflected by its status on the National Register of

Historic Places, Applicant’s mark has a recognized meaning other than as a surname.

17 December 4, 2017 Office Action at 6 (Gazetteer), 51 (Dictionary.com).
18 4 TTABVUE 8 (Applicant’s Brief).

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Applicant also points to articles in the record by the D.C. Preservation League and

the Architect of the Capital allegedly showing the renown of the Riggs Bank based on

its handling of significant transactions “such as financing the Mexican-American War

and the Alaska purchase … [and] Samuel Morse’s development of the telegraph” and

the bank’s significant customers, including U.S. presidents.19

We find Applicant’s arguments on this factor unpersuasive for numerous reasons.

First, nothing in the application record confines Applicant’s services to a particular

building, and we therefore decline to rely on unsupported contentions arising from an

alleged association of the services with a particular building. Second, regardless,

although Applicant’s evidence reflects that the building in question has some

historical significance, it does not show that many consumers necessarily would be

aware of it. For example, Applicant’s submission about the National Register of

Historic Places indicates that it characterizes itself as “a treasure trove for

professional historians, scholars, and anyone curious about American history,”20

suggesting that it may not be widely used by ordinary consumers. Also, it indicates

that the National Register includes “more than 90,000 properties” that “represent 1.4

million individual resources—buildings, sites, districts, structures, and objects,”21

and this magnitude suggests that ordinary consumers are unlikely to be familiar with

19 4 TTABVUE 7 (Applicant’s Brief).
20 November 30, 2017 Response to Office Action at 22.
21 Id.

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all or even most of them. Applicant’s other sources also do not appear to be

mainstream publications reflecting widespread public exposure.

Third, even assuming they were, Applicant’s evidence is mixed as to whether the

building would be known by Riggs Bank name or the Washington Loan & Trust

Company name. While the nomination form for the National Register refers to the

building’s “common” name as “Riggs National Bank – Washington Loan & Trust

Company Branch,” its “historic” name is identified as “Washington Loan & Trust

Company.”22 Among several publications Applicant introduced on notable

architecture or historic sites, at least two refer to the building as the Washington

Loan & Trust Company Building. One contains a brief mention that “[i]n later years,

the building was occupied by Riggs Bank,”23 and the other notes that the building

was “acquired by Riggs Bank 1954.”24

Fourth and finally, consumer exposure to the “Riggs Bank Building” would not

necessarily favor Applicant’s position based on this record, as several of Applicant’s

submissions note that the name of Riggs Bank came from its co-founder George

Washington Riggs, identified as the heir of a New York banking family.25 Applicant’s

argument on this point resembles one made but rejected in In re Adlon Brand, 120

USPQ2d at 1722, in which the applicant unsuccessfully argued that the primary

22 November 30, 2017 Response to Office Action at 50.
23 November 30, 2017 Response to Office Action at 42-46.
24 Id. at 47.
Id. at 56 (historicsites.dcpreservation.org), 61 (Architect of the Capital, Hidden History in
25

Washington, D.C.).

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meaning of ADLON was not its surname significance, but rather “to designate the

historic Hotel Adlon in Berlin,” which the applicant’s Wikipedia evidence stated was

“one of the most famous hotels in Europe.” Just as in this case, however, the name of

the historic building derived from the founder of the historic business and therefore

the prominence of the building bearing the surname does not negate the surname

significance. See id. at 1722-23 (“Rather than persuade us that the Hotel Adlon is so

historically prominent that the hotel significance of ADLON has supplanted the

surname significance, this evidence shows the term ADLON used in a context that

actually suggests that the term is a surname.”).

We do not find a non-surname meaning of RIGGS for the reasons set forth above,

but even if we did, the mere existence of the building sometimes referred to as the

Riggs National Bank Building does not preclude a finding that RIGGS is primarily

merely a surname regardless. Rather, we would consider to what degree, if any, the

public would associate the particular meaning with the goods or services in the

application. See Mitchell Miller, PC v. Miller, 105 USPQ2d 1615, 1621 (TTAB 2013)

(“the record is devoid of evidence that the non-surname meanings of MILLER, i.e., a

mill operator or a moth, are the primary significance thereof or somehow eclipse its

surname significance” in connection with legal services). As noted above, the record

does not persuade us that consumers necessarily would associate the building with

the services in Applicant’s intent-to-use applications.

Applicant also argues under this factor that third-party registrations for various

services reflect that “historically and culturally significant names are eligible for

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registration on the Principal Register, as their primary significance is other than as

a surname.”26 In support thereof, Applicant submitted TESS printouts of

registrations for WRIGLEY BUILDING, , THE BRILL BUILDING,

HUGHES CENTER, RITZ-CARLTON, HILTON, JW MARRIOTT, WALDORF

ASTORIA, and THE SMITH.27 The full records of those third-party registrations are

not of record in our case, so we are not privy to the evidence in those cases. We agree

with the Examining Attorney’s criticism of Applicant’s contentions on the grounds

both that the record lacks the necessary contextual evidence to prove that the terms

are surnames, and that several of the marks contain additional matter such as

“building,” “center,” and perhaps initials or another name that distinguish the marks

from RIGGS and would change the surname refusal analysis. In addition, each

application must stand on its own record and be assessed on a case-by-case basis. See

In re Nett Designs, 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (“Even if

some prior registrations had some characteristics similar to [applicant’s] application,

the PTO’s allowance of such prior registrations does not bind the board or this

court.”).

We find that the consumers would apply the surname meaning of RIGGS to

Applicant’s mark.

26 4 TTABVUE 10 (Applicant’s Brief).
27 November 30, 2017 Response to Office Action at 76-103. To the extent Applicant relies in
its Brief on additional registrations that are not in the record, we decline to consider them.
See 37 C.F.R. § 2.142(d).

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C. Whether RIGGS Is the Surname of Anyone Associated with Applicant’s
Services

While the association of someone bearing the surname with an applicant’s

business tends to enhance the public perception of the mark as a surname, “[t]he

apparent absence of a person named [RIGGS] in Applicant’s current management

does not, in itself, reduce the likelihood that the public would perceive the mark as a

surname.” Adlon Brand, 120 USPQ2d at 1724; see also Gregory, 70 USPQ2d at 1795.

We have no evidence of an association of Applicant’s services with anyone who has

the surname RIGGS. However, were credence given to Applicant’s assertion of the

association of its services with the Riggs National Bank Building, then the historical

association of the bank’s co-founder George Washington Riggs with the bank and the

building would contribute to public perception of RIGGS as a surname.28

D. Whether RIGGS Has the Structure and Pronunciation of a Surname

Next, we consider whether RIGGS has the structure and pronunciation of a

surname. “Under this factor, a party may submit evidence that, due to a term’s

structure and pronunciation, the public would or would not perceive it to have

surname significance.” Azeka Bldg. Corp., 122 USPQ2d at 1481. Typically, such

evidentiary showing would involve proof of other common surnames that are

configured similarly and sound similar to the mark. See Eximius Coffee, 120 USPQ2d

at 1280 (would need proof that other terms with the suffix “OA” are common

Id. at 56 (historicsites.dcpreservation.org), 61 (Architect of the Capital, Hidden History in
28

Washington, D.C.).

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surnames to show a structure and pronunciation similar to ALDECOA); Adlon

Brand, 120 USPQ2d at 1724 (“With the possible exception of Ablon and Allon, which

differ from ADLON by one letter, the surnames cited are not highly similar in

structure to ADLON”). Neither Applicant nor the Examining Attorney submitted this

type of evidence, nor does either offer such arguments under this factor.

E. Conclusion

We find that the record, taken as a whole, establishes that the primary

significance to the purchasing public of the proposed mark RIGGS is merely that of a

surname within the meaning of Section 2(e)(4).

Decision: The refusals to register Applicant’s mark under Section 2(e)(4) of

the Act are affirmed.

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