Thursday, March 06, 2008

TTAB Reverses Surname Refusal of "CURLIN" for Medical Devices

Reversing a Section 2(e)(4) refusal, the Board found the mark CURLIN not to be primarily a surname for medical infusion pumps and related computer software. In a concurring opinion, Judge Seeherman expanded on her view of the role of the "look and feel" factor in the Board's surname analysis. In re Curlin Medical Inc., Serial No. 78560314 (February 11, 2008) [not precedential].

The Board applied its standard formula in finding that CURLIN is a rare surname, that no one associated with applicant has the surname CURLIN, that the term is likely to be perceived as a term coined by Applicant as a "corrupted version" of the word "curvilinear" as applied to the subject goods, and that CURLIN does not have the "look and feel" of a surname (despite the Examining Attorney's argument that it has the "lin" ending of other two-syllable surnames (like Coughlin, Conklin, Hamlin, and Timlin)).

Considering all the evidence, the Board concluded that the PTO had failed to make a prima facie case, and even if it had, that Applicant had provided sufficient rebuttal evidence to prevail.

In her concurrence, Judge Seeherman reiterated the point made in her concurring opinion in In re Joint-Stock Co. "Baik", 84 USPQ2d 1921 (TTAB 2007) as to how the "look and feel" factor should be interpreted.

"The Examining Attorney's arguments in the present case ... illustrate the problem with using this factor to show that a term has surname significance. Curlin is very different from Coughlin, Conklin and Hamlin, as different as are the ordinary words 'poplin' and 'gremlin' noted by applicant. We can reach absurd results if we base our analysis on whether certain syllables or letter chains can be found in the applied-for mark and in various surnames."

Interpreting this factor to refuse registration of a mark simply because it is similar to recognized surnames "does not serve the intention of the statute, which is to keep surnames available for use by those with that surname." Here, the rareness of the surname CURLIN is sufficient to lead to the conclusion that it is not primarily merely a surname.

When a surname is extremely rare, "there are very few, if any, people who can possibly be affected by the registration of that surname." Here, the PTO found only 286 records for the surname CURLIN in a national database, a number "so small that the purpose of the statute prohibiting the registration of marks which are primarily merely a surname would not be served by refusing registration in this case."

TTABlog note: For additional discussion of this issue, see Section V of the article "The TTAB in 2007: Rules, Rulings, and Repurcussions," co-authored with Ann Lamport Hammitte.

Text Copyright John L. Welch 2008.


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