*1 IN RE NUCLEAR RESEARCH CORPORATION
Serial No. 728, 788
May 29, 1990
Walter B. Udell of Maleson, Udell and Rosenberg for applicant
Irene D. Williams
Trademark Examining Attorney
Law Office 3
(Myra Kurzbard, Managing Attorney)
Before Sams, Rooney and Quinn
Members
Opinion by Quinn
An application has been filed by Nuclear Research Corporation to register the mark shown below
for radiation and chemical agent monitors, electronic testers and nuclear gauges. [FN1]
Registration has been finally refused under Section 2(a) of the Trademark Act, 15 U.S.C. 1052(a), on the ground that applicant's mark consists of or comprises matter which may falsely suggest a connection with a government agency of the United States, namely The United States Nuclear Regulatory Commission. Applicant and the Trademark Examining Attorney have filed briefs. No oral hearing was requested.
Applicant, in arguing for registration, asserts that it adopted its mark long prior to the establishment in 1974 of the Nuclear Regulatory Commission, and that the Nuclear Regulatory Commission is aware of applicant's use of the mark "NRC" but has made no objection thereto. Applicant further contends that the designation "NRC" does not uniquely identify the U.S. Nuclear Regulatory Commission. Applicant has submitted a declaration of its president and several exhibits in support of registration. [FN2] The Examining Attorney, on the other hand, contends that "NRC" is a well known abbreviation for the Nuclear Regulatory Commission; that applicant has no connection with this government agency; and that the Nuclear Regulatory Commission is of sufficient fame or reputation that a connection between registrant and applicant would be presumed when applicant's mark is applied to its goods. The evidence compiled by the Examining Attorney consists of listings in dictionaries showing that "NRC" is an abbreviation for, among other things, Nuclear Regulatory Commission, and excerpts from articles obtained from the NEXIS research database showing that this government agency is commonly abbreviated as "NRC".
We reverse the refusal to register.
In this case, it is the Examining Attorney's burden to show that the mark sought to be registered is unmistakably associated with a particular "persona". As the Board earlier stated in the case of In re Cotter & Co., 228 USPQ 202, 204 (TTAB 1985):
In order to do this, an Examining Attorney must show that the mark sought to be registered is the same or a close approximation of the name or identity of a person, living or dead, or of an institution and that it would be recognized as such. It must also be clear that the person or institution identified by the mark is not connected with the goods or services performed by applicant under the mark. Finally, it must be shown that the fame or reputation of the named person or institution is of such a nature that a connection with such person or institution would be presumed when the applicant's mark is used on its goods or services.
*2 More significantly, at least for purposes of the issue before us in this case, the phrase "falsely suggest a connection with" in Section 2(a) necessarily requires by implication that the person or institution with whom a connection is suggested must be the prior user. See: In re Mohawk Air Services Inc., 196 USPQ 851, 854-855 (TTAB 1977). See also: Buffett v. Chi-Chi's, Inc., 226 USPQ 428, 429 (TTAB 1985).
In the case before us, the name Nuclear Research Corporation serves to readily explain how the letters "NRC" were conceived by applicant. Moreover, we find that applicant is the long prior user of NRC and, thus, the refusal is ill founded. The Examining Attorney would have us believe that applicant's use of its mark prior to the inception of the Nuclear Regulatory Commission "was that of a separate design and/or the terms NRC Industries" (Examining Attorney's brief, p. 4). The Examining Attorney goes on to assert that the mark as shown in the drawing was not used until after the Nuclear Regulatory Commission was established. Applicant's Exhibits A and B, supported by the declaration of applicant's president, show uses of NRC which predate the establishment of the Nuclear Regulatory Commission. While the exhibits comprise a letterhead and what appears to be a page from an advertising brochure and, thus, do not show technical trademark use on goods, we find that the evidence shows analogous trademark use of NRC and is sufficient to show applicant's priority. Moreover, while these prior uses are not for the exact mark now sought to be registered, the marks are substantially similar to the mark at issue. That is to say, through the years, the marks have presented the same, continuing commercial impression, namely the letters "NRC". In view of applicant's prior use of NRC, the Section 2(a) refusal must fail. [FN3]
In reaching our conclusion, we think that the following language in an earlier Board decision is equally appropriate in the instant case:
It seems unreasonable in this day and age where there is a plethora of governmental agencies and departments identified by their initials and a tendency of commercial organizations to adopt and use designations comprising the initial letters of the various components of their corporate names as trademarks for goods to preclude, in the absence of a statutory prohibition against any and all use of an abbreviation or name used by a particular governmental agency or department, the registration of the name or a similar term by a commercial organization where, as here, the circumstances surrounding such use are not calculated or likely to mistakenly cause purchasers to associate such commercial activities with a governmental body.
Federal Bureau of Investigation v. Societe: "M. Bril & Co.", 172 USPQ 310, 315 (TTAB 1971), aff'd, 187 USPQ 685 (DC D.C.1975).
*3 Decision: The refusal to register is reversed.
J.D. Sams
L.E. Rooney
T.J. Quinn
Members, Trademark Trial and Appeal Board
FN1. Application Serial No. 728, 788, filed May 16, 1988, claiming use since October 1977.
FN2. Applicant did not submit the declaration and some of the relevant exhibits until it filed its appeal brief. This evidence is technically untimely filed. See: Trademark Rule 2.142(d). No objection was made to this submission, however, and, in fact, the Examining Attorney has considered the evidence in her brief. Accordingly, we too have considered this evidence in reaching our decision.
FN3. We further note applicant's claim that, despite knowledge of applicant, the Nuclear Regulatory Commission has never objected to applicant's use of NRC to identify its goods (see applicant's exhibit F).