Thursday, May 15, 2008

TTAB Affirms Surname Refusal of "HARRINGTON OAK" for Flooring

Applicant Mannington Mills was floored by the PTO's Section 2(e)(4) refusal of the mark HARRINGTON OAK for "oak floor boards; oak wooden flooring" [OAK disclaimed]. The Board affirmed the refusal, agreeing with Examining Attorney Monique C. Miller that the mark is primarily merely a surname. In re Mannington Mills, Inc., Serial No. 78783771 (April 22, 2008) [not precedential].


The PTO relied upon U.S. Census Bureau data showing that "Harrington" ranks 478th in terms of surname frequency, and that 0.024% of the population has that surname. A white pages website listed more than 300 Harringtons, and the People Finder database contained 30,887 telephone listings for that surname. Seven third-party Harrington registrations reside on the Supplemental Register or under 2(f) on the Principal Register. The PTO also submitted website pages referring to former Detroit Lions quarterback Joey Harrington, professional golfer Padraig Harrington, and actor Pat Harrington.

Applicant submitted various items showing use of "Harrington" as the name of a font, as the name of towns in Delaware, New Jersey, Maine, and Washington, as street in Teaticket, Massachusetts and in the Bronx, and as a type of jacket. It also provided three third-party registrations in which the word "Harrington" was not disclaimed.

The Board applied its standard surname test found in In re Benthin Management GmbH, 37 USPQ2d 1332 (TTAB 1995). Pointing to the statistical proofs, it first found that HARRINGTON is "not a rare surname." In addition to the statistics, it was impressed that celebrities such as Joey Harrington, Padraig Harrington, and Pat Harrington "are subjects of news stores appearing in newspapers throughout the country." [TTABlog comment: what does that have to do with the surname's rareness?]

Next, it noted that there was no evidence that anyone connected with applicant has that surname.

Thirdly, the Board considered other meanings of "Harrington." It observed that the word has no dictionary meaning and it concluded that the primary meaning of HARRINGTON is that of a surname: "There is no persuasive evidence in the record that indicates any significant consumer recognition and association between HARRINGTON and any geographical association, font, or any other item other than a surname."

Finally, as to the fourth plank in the Benthin platform, whether the mark has the "look and feel" of a surname, the Board pointed out that this is a highly subjective factor. It promptly concluded that HARRINGTON "has the clear look and feel of a surname."

The addition of the word "oak" has no trademark significance, "and, in fact, emphasizes that HARRINGTON is a surname by engendering the commercial impression of oak flooring offered by or designed by an individual named Harrington."

Considering all the evidence, the Board laid the wood to Applicant by affirming the 2(e)(4) refusal to register.

TTABlog note: For a criticism of the TTAB's current surname test, see Section V of the article "The TTAB in 2007: Rules, Rulings, and Repercussions", which launches off from Judge Seeherman's concurring opinion in In re Joint-Stock Company "Baik", 84 USPQ2d 1921 (TTAB 2007) [TTABlogged here].

Text Copyright John L. Welch 2008.

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