THIS DISPOSITION IS NOT
`CITABLE AS PRECEDENT
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`Mailed: October 31, 2006
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`________
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`Trademark Trial and Appeal Board
`________
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`In re Ruxton Pharmaceuticals, Inc.
`________
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`Serial No. 78496761
`_______
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`Nicole K. McLaughlin of Duane Morris LLP for Ruxton
`Pharmaceuticals, Inc.
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`Marcie R. Frum Milone, Trademark Examining Attorney, Law Office
`116 (Michael W. Baird, Managing Attorney).
`_______
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`Before Hohein, Kuhlke and Walsh, Administrative Trademark Judges.
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`Opinion by Kuhlke, Administrative Trademark Judge:
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`An application has been filed by Ruxton Pharmaceuticals,
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`Inc. to register the mark RUXTON PHARMACEUTICALS (in standard
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`character form) for goods ultimately identified as
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`“Pharmaceutical products and preparations for the treatment and
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`prevention of central nervous system diseases, namely,
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`neurodegenerative, cognitive, psychiatric and pain disorders;
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`cardiovascular anti-inflammatory and anti-infective
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`

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`Ser No. 78496761
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`pharmaceuticals and preparations” in International Class 5.1 In
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`response to the examining attorney’s request, applicant
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`disclaimed the word PHARMACEUTICALS.
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`The examining attorney has refused registration under
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`Section 2(e)(4) of the Trademark Act (15 U.S.C. §1052(e)(4)) on
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`the ground that RUXTON is primarily merely a surname.
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`Applicant has appealed. Both applicant and the examining
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`attorney have filed briefs. We affirm the refusal to register.
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`A term is primarily merely a surname if, when viewed in
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`relation to the goods or services for which registration is
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`sought, its primary significance to the purchasing public is that
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`of a surname. See In re United Distillers plc, 56 USPQ2d 1220
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`(TTAB 2000). The inclusion in the mark of a generic term “does
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`not preclude its surname significance, if, when considered as a
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`whole the primary significance of the mark to the purchasing
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`public is that of a surname.” In re Hamilton Pharmaceuticals
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`Ltd., 27 USPQ2d 1939, 1940 (TTAB 1993). The burden is on the
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`examining attorney to establish a prima facie case that a term is
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`primarily merely a surname. In re Etablissements Darty et Fils,
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`759 F.2d 15, 225 USPQ 652 (Fed. Cir. 1985). Among the factors to
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`be considered in determining whether a term is primarily merely a
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`surname are (1) the degree of a surname's rareness; (2) whether
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`1 Application Serial No. 78496761, filed October 8, 2004, claiming a
`bona fide intention to use the mark in commerce under Trademark Act
`Section 1(b) (15 U.S.C. §1051(b)).
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`2
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`Ser No. 78496761
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`anyone connected with applicant has that surname; (3) whether the
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`term has any recognized meaning other than that of a surname; and
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`(4) whether the term has the "look and sound" of a surname. See
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`In re Benthin Management GmbH, 37 USPQ2d 1332, 1333 (TTAB 1995).
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`See also In re Gregory, 70 USPQ2d 1792 (TTAB 2004).
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`In support of her contention that RUXTON is a surname, the
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`examining attorney provided a listing of 115 entries for
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`individuals with the surname RUXTON retrieved from the
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`Lexis/Nexis USFIND database.2 The examining attorney also
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`submitted pages from various websites that show RUXTON used as a
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`surname. See, e.g., surnames.heritagecreations.com;
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`ruxtonbrothers.com; amazon.com; antiques-colorado.com;
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`genforum.genealogy.com; ancestry.com; andoverstownman.com;
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`houseofnames.com; nytimes.com; and chenowithsite.com. In
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`addition, she submitted two third-party registrations which
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`issued under Section 2(f) based on a showing of acquired
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`distinctiveness. She also submitted Lexis/Nexis printouts of
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`excerpted articles from various publications that show several
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`individuals throughout the United States who have the surname
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`RUXTON.
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`2 In reviewing this evidence, we have disregarded any duplicate
`references to the same individuals in the USFIND database.
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`3
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`Ser No. 78496761
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`In support of her position that RUXTON has no other meaning,
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`she submitted the “results of a search in the Columbia Gazetteer,
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`which showed that a geographic search for RUXTON did not produce
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`any results.” In addition, she submitted “a full search at
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`Bartleby.com show[ing] a hit for RUXTON used solely as a
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`surname,” and noted that RUXTON “would have appeared with a
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`definition in this search, if, indeed, it were a defined term.”
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`Br. unnumbered p. 5.
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`Finally, in support of her argument that RUXTON has the look
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`and feel of a surname, the examining attorney submitted search
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`results from the Lexis/Nexis PFIND database for the surnames
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`BRAXTON, BUXTON, RUX, and ROXTON.
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`As to the meaning of the word PHARMACEUTICALS the examining
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`attorney submitted the following dictionary definitions:
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`PHARMACEUTICAL adj. Connected with the production of
`medicines n. a medicine. Dictionary.cambridge.org
`(Cambridge University Press 2004); and
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`PHARMACEUTICAL adj. of or relating to pharmacy or
`pharmacists. n. a pharmaceutical product or
`preparation. The American Heritage Dictionary of the
`English Language (4th ed. 2000).
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`Applicant submitted excerpts from the Dictionary of American
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`Family Names (2003); American Surnames (1969); and A Dictionary
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`of Names, Nicknames and Surnnames (1904 repub. 1966), noting that
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`none of these sources lists RUXTON as a surname. However, the
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`Dictionary of American Family Names does list RUXTON as a
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`4
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`

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`Ser No. 78496761
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`surname. Applicant also notes a third-party registration for
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`RUXTON that was not registered pursuant to Section 2(f); however,
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`applicant did not submit a copy of this registration. In
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`addition, applicant submitted printouts from www.whitepages.com
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`which show that RUXTON is not listed as a surname in the town or
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`zip code where applicant’s corporation is located. Applicant
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`also submitted a printout of the search results showing no
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`records for the name RUXTON retrieved from the website
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`mongabay.com which purports to contain the most common surnames
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`in the United States and a printout from www.namestatistics.com
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`which includes a statement that RUXTON is a “very rare last
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`name.”
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`In support of its contention that RUXTON has other meanings,
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`applicant submitted excerpts from search results retrieved from
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`the Google search engine which show RUXTON used as a surname, as
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`a geographic location and as part of a company or school name,
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`e.g., RUXTON MEDIA GROUP; a printout from mapquest.com showing
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`RUXTON as the name of a town and creek in Colorado and a city in
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`Maryland; and an article retrieved from a Canadian online auto
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`magazine that mentions the RUXTON car named after a William
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`Ruxton and produced for approximately one year. Finally,
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`applicant also states that no one in the corporation “possesses
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`the name ‘Ruxton.’”
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`5
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`Ser No. 78496761
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`We first determine whether RUXTON is a rare surname. The
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`evidence of 115 entries (a few of which appear to be duplicates)
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`is not substantial evidence that the term RUXTON is a common
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`surname. With regard to the articles, they are not sufficient to
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`compensate for the small number of entries in the USFIND
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`database. Compare Gregory, 70 USPQ2d at 1795 (“[E]xistence of
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`these [public officials] with the surname ROGAN leads us to
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`conclude that the name may be rare when viewed in terms of
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`frequency of use as a surname in the general population, but not
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`at all rare when viewed as a name repeated in the media and in
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`terms of public perception.”). Therefore, we conclude that the
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`surname RUXTON is not a common surname in the United States, and
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`thus it would be somewhat rare. See United Distillers, 56 USPQ2d
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`at 1221 (“Hackler” held to be a rare surname despite 1295
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`listings in phone directories).3
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`However, the fact that a term is not a common surname does
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`not mean that a surname would not be considered to be primarily
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`merely a surname. See In re Adrian Giger and Thomas Giger, 78
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`USPQ2d 1405, 1408 (TTAB 2006). See also In re E. Martinoni Co.,
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`189 USPQ 589, 590 (TTAB 1975); and In re Industrie Pirelli
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`Societa per Azioni, 9 USPQ2d 1564, 1566 (TTAB 1988). Here, the
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`3 While applicant argues that the number of RUXTON hits against the
`total U.S. population is very small, we note that given “the large
`number of different surnames in the United States, even the most common
`surnames would represent but small fractions of the total population.”
`See Gregory, 70 USPQ2d at 1785.
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`6
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`Ser No. 78496761
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`USFIND listings and articles retrieved from Lexis/Nexis show use
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`of RUXTON as a surname in New York, New York; Bonita Springs,
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`Florida; Philadelphia, Pennsylvania; West Menlo Park, California;
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`Kansas City, Missouri; Iron Mountain, Wyoming; Lakewood,
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`Colorado; Eugene, Oregon; Iowa City, Iowa; Munci, Indiana;
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`Bristol, Wisconsin; Middletown, Connecticut; Chicago, Illinois;
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`Baltimore, Maryland; Menands, New York; Cincinnati, Ohio;
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`Plymouth, Massachusetts; and Syracuse, New York among other
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`places. In view of this evidence, we find that the surname
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`significance of RUXTON would be recognized by prospective
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`purchasers.4 See Establissements Darty et Fils, supra.
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`The second factor we consider is whether anyone associated
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`with applicant has the surname RUXTON. In this case, applicant
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`has indicated that no one associated with it has the surname
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`RUXTON and there is nothing in the record to contradict this
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`statement.
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`The third factor we consider is whether there is evidence of
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`another recognized meaning of the term RUXTON. In this case, the
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`examining attorney submitted evidence that the term RUXTON has no
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`other meaning in English. Specifically, the examining attorney
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`searched the Bartleby database and only retrieved a surname
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`4 We note that the two third-party registrations submitted by the
`examining attorney are not sufficient to establish a particular
`practice by the Trademark Office. Moreover, as is often stated, each
`case must stand on its own merits. In re Nett Designs Inc., 236 F.3d
`1339, 57 USPQ2d 1564 (Fed. Cir. 2001).
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`7
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`Ser No. 78496761
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`reference for RUXTON. Applicant’s evidence does not support a
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`finding that RUXTON has another primary meaning in English. The
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`search results retrieved from the Google search engine do not
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`serve substantially to support applicant’s argument. Out of
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`approximately 26 excerpts, 11 excerpts show Ruxton appearing as a
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`surname and 3 excerpts show RUXTON appearing as a company name,
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`where the company is named after an individual with the last name
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`RUXTON. As to the remaining excerpts, 2 appear to be
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`geographical references to the town of Ruxton, Maryland and in
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`some of the other excerpts RUXTON appears as part of the name of
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`a company or school which may or may not be based on the surname
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`of an individual. We further note that search results frequently
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`do not provide sufficient information to determine the
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`significance of a term. In re Fitch IBCA, Inc., 64 USPQ2d 1058,
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`1060 (TTAB 2002). As to the geographical references, this case
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`is not in the category of In re Colt Industries Operating Corp.,
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`195 USPQ 75 (TTAB 1977) where the geographical significance of
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`FAIRBANKS as a well-known city in Alaska obviated a finding of
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`primary surname significance. There is nothing in the record to
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`suggest that Ruxton, Maryland or Ruxton Creek in Colorado are
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`well-known or even slightly known to potential consumers of
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`applicant’s goods. See Hamilton Pharmaceuticals, supra. The
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`article about a car called RUXTON is not sufficient to show
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`another meaning for RUXTON in the consumer’s minds. According to
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`8
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`Ser No. 78496761
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`the article, this car was named after an individual and produced
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`between 1930 and 1931. We are also not persuaded by applicant’s
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`argument that RUXTON PHARMACEUTICALS “is registrable because its
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`rare occurrence as a surname is in balance with its use as
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`something other than a surname.” Reply Br. p. 4. Unlike In re
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`Hunt Electronics Co., 155 USPQ 606 (TTAB 1967) (HUNT not
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`primarily a surname) and In re Fisher Radio Corp. v. Bird
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`Electronic Corp., 162 USPQ 265 (TTAB 1969) (BIRD not primarily
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`merely a surname) there is no definitive other meaning of RUXTON.
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`Hamilton Pharmaceuticals, 27 USPQ2d at 1942 (“unless there is a
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`readily recognized meaning for a term apart from its surname
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`significance, the fact that other meanings for the term exist
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`does not necessarily indicate that the term would have a primary
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`meaning to the purchasing public other than that of its ordinary
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`surname significance”).
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`Finally, we consider whether RUXTON has the look and sound
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`of a surname. As stated in Ex parte Rivera Watch Corp., 106 USPQ
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`145, 149 (Comm'r Pats. 1955):
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`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.
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`Applicant argues that RUXTON does not have the “look and
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`feel” of a surname. Applicant specifically argues:
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`9
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`Ser No. 78496761
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`In the case of rare surnames, there is no evidence that
`relevant purchasers would be “preconditioned” to
`perceive RUXTON as a surname...Applicant-appellant
`submits that there are a myriad of famous trademarks,
`such as KODAK®, that may also be surnames. Although
`“Kodak” may be a surname, it is also heralded as being
`a “strong” trademark because it is inherently
`distinctive or “fanciful.” There are many other famous
`trademarks that become surnames by simply changing one
`letter. For example, by taking the well-known INTEL®
`trademark and adding one letter, one may come up with
`the surnames “Fintel” or “Gintel.” By changing a
`single letter of the INTEL® mark, you get surnames such
`as “Antel,” “Istel,” or “Insel”...Moreover, the
`determination of whether a mark has the “look and feel”
`of a surname is based on a culmination of the other
`factors: In this case, the Board should consider
`whether “Ruxton” has any other known significance, and
`whether Ruxton is the surname of an individual
`affiliated with the Applicant-appellant.
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`Br. pp. 12-13.
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`The examining attorney argues that:
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`There is no evidence of record to suggest that the
`proposed mark will be perceived as anything other than
`a surname. It does not appear to have a defined,
`recognized meaning or coined meaning. (citation
`omitted) RUXTON appears to be a cohesive term that has
`nothing more than surname significance. The fact that
`a term looks and sounds like a surname may contribute
`to a finding that the primary significance of the term
`is that of a surname...In the denial of the request for
`reconsideration, the Examining Attorney attached
`additional evidence that other, similar sounding
`surnames, such as BRAXTON, BUXTON, RUX, and ROXTON have
`a primary significance as a surname. The examiner also
`attached evidence of a Ruxton tartan that was submitted
`by a RUXTON from California. This evidence only
`bolsters the examiner’s argument that the primary
`significance of RUXTON is as a surname and that RUXTON
`has the “look and feel” of a surname.
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`Br. unnumbered pp.9-10.
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`10
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`Ser No. 78496761
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`We conclude that RUXTON has the look and sound of a
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`surname.5 First, there are numerous individuals with the surname
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`RUXTON throughout the United States. Second, it has no other
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`known significance sufficient to obviate its primary significance
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`as a surname. “It would not be perceived as an initialism or
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`acronym, and does not have the appearance of having been coined
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`by combining a root element that has a readily understood meaning
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`in its own right with either a prefix or a suffix.” Gregory, 70
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`USPQ2d at 1796. The facts of this case are distinguished from In
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`re Sava Research Corp., 32 USPQ2d 1380 (TTAB 1994) where the
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`Board found the word SAVA “to have the look and sound of an
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`acronym, and that applicant’s explanation as to the meaning of
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`SAVA [was] quite plausible.” In this case, applicant has not
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`argued nor is it plausible that RUXTON would be perceived as an
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`acronym or abbreviation.
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`In conclusion, while RUXTON is not a common surname and no
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`one associated with applicant has the surname RUXTON, it has the
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`look and sound of a surname and the record points to no other
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`definitive recognized meaning for this term. Thus, when we view
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`5 We note the examining attorney’s argument regarding the occurrence of
`other similar sounding surnames. While this evidence may be helpful in
`providing some context for consumer perception of certain combinations
`of letters, sounds, suffixes and prefixes in surnames, see Industrie
`Pirelli Societa per Azioni, 9 USPQ2d 1564, 1566 (TTAB 1988), our
`determination does not rely on this evidence. We also note that
`applicant’s argument regarding the significance of other marks or
`manipulation of those marks to create surnames is not supported by
`evidence and the possible perception of other trademarks is not
`relevant here.
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`11
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`Ser No. 78496761
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`the term RUXTON under the factors set out in Benthin, we conclude
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`that the examining attorney has met her initial burden of showing
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`that the term RUXTON would primarily be viewed as a surname and
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`applicant has not rebutted this prima facie case.
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`Considering the mark as a whole, the addition of the generic
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`term PHARMACEUTICALS does not overcome the surname significance
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`of the proposed mark RUXTON PHARMACEUTICALS. Hamilton
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`Pharmaceuticals, supra. “It is certainly not a nebulous term
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`that detracts from the surname significance of the mark.” Giger,
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`78 USPQ2d at 1409. Therefore, when we consider the primary
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`significance of the entire mark, RUXTON PHARMACEUTICALS, when it
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`is used on applicant’s pharmaceutical products and preparations,
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`we conclude that prospective purchasers would understand that the
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`term is primarily merely a surname.
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`Decision: The refusal to register under Section 2(e)(4) of
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`the Trademark Act on the ground that it is primarily merely a
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`surname is affirmed.
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`12