Wednesday, July 08, 2009

Another WYHA? TTAB Affirms 2(e)(4) Surname Refusal of "MERIWETHER" for Cabinetry

The Board affirmed a Section 2(e)(4) refusal to register the mark MERIWETHER for cabinetry, finding it to be primarily merely a surname. Applicant Masco argued that the mark has non-surname significance as the first name of explorer Meriwether Lewis, but that argument, unlike Lewis, went nowhere. In re Masco Builder Cabinet Group, Serial No. 77309908 (June 15, 2009) [not precedential].

Meriwether Lewis

Examining Attorney Dominic J. Ferraiuolo proffered more than 300 listings for persons with the surname MERIWETHER in the United States ("not an especially rare surname," observed the Board). The mark has the "look and sound" of a surname, the Board opined, and "does not look like a coined term or an acronym, nor anything else but a surname."

Based on these findings, we find, prima facie, that MERIWETHER is primarily merely a surname. MERIWETHER, depicted in standard character form, looks like a surname, and it in fact is a surname.

The next question was whether this prima facie case was overcome by any recognized non-surname meaning or significance.

Masco contended that MERIWETHER has non-surname significance as (1) the first name of Meriwether Lewis of the Lewis and Clark Expedition, and (2) as the name of the Meriwether National Golf Club, near Portland, Oregon.

The Board noted that Masco's evidence showed that MERIWETHER is not merely a surname, but the question is "what the primary significance of the mark would be to the purchasing public." The Board pointed out that "[t]he mere existence of non-surname meanings does not preclude a finding that the mark is merely a surname."

The Wikipedia entry for "Meriwether Lewis" (here) discusses his role in the famous Expedition, but there was no evidence that consumers are aware that Lewis' first name was Meriwether, "much less any evidence that they would recognize or refer to Meriwether Lewis by his first name." Lewis is not an historical figure of such renown that consumers, seeing the word MERIWETHER, would think it referred to Lewis, rather than perceiving it primarily as a surname.

As to the Meriwether National Golf Club, even assuming that the club was not named after someone with the surname MERIWETHER, there was no evidence that this golf club is well-known to consumers, even golf fans. This non-surname significance is "much too obscure to support a finding that it, rather than the surname of significance of MERIWETHER, is the primary significance of MERIWETHER."

The Board concluded that there are no recognized non-surname meanings of MERIWETHER that eclipse its surname significance, and so it affirmed the refusal.

TTABlog comment: The golf course evidence was obviously feeble, but the Meriwether Lewis argument wasn't much better. Would you have given it a shot on appeal? What do you think a survey would have shown as to people's perception of the word MERIWETHER? Given that, as H.L. Mencken said, the average American is below average, I think one in ten thousand would say "Meriwether Lewis."

Text Copyright John L. Welch 2009.


At 8:49 AM, Blogger Frank said...

I don't see the purpose of ridiculing another attorney's decision to appeal when in most cases the decision is the client's and the attorney is merely making the best arguments available. Would you have appealed Brown v. Board of Education? Aren't we in the business of some time taking on lost causes? The fact that an attorney filed an appeal doesn't mean that he or she advised the client to do so. Clients have minds of their own. Enough of WYHA! It chills trademark owners' rights to challenge the status quo.

At 9:06 AM, Anonymous Anonymous said...

I have to admit, "Lewis" was the first thing I thought of when I saw "Meriwether", although I do live in Central Virginia, where Lewis is from. So I guess that makes it two out of ten thousand (or, I suppose, just makes me below average). I would agree, though, that when considering the primary significance of the name as applied to "cabinetry," the primary signficiance of "Meriwether" comes across as a surname as there is no connection with the explorer and cabinets. On the other hand, if registration was being sought for MERIWETHER for canoes or other explorer-related goods, that would be entirely different.

At 10:17 AM, Anonymous Anonymous said...

I think if you asked your average pre-schooler, they would think the name Meriwether was the name of one of the 3 fairy godmothers in the movie, Sleeping Beauty (Merryweather).

At 12:40 PM, Anonymous Anonymous said...

Being a former in-house paralegal, I believe that this was a total waste of time and resources. More often than not, outside counsel do not provide enough information to the client for them to make an informed decision. How can you compare this situation to Brown v. Board, which a clear violation of human rights and not to mention, the Constitution?

It is clear that the Appellant had no evidence to support its case.

At 2:57 PM, Anonymous Anonymous said...

Although the applicant's evidence was not very compelling, the PTO is out of control with the surname refusals. 300 is remarkably weak, yet numbers like that (and even lower) prevail routinely. Very frustrating.

At 4:17 PM, Anonymous Josh said...

@Frank: The TTABlog merely questions, rather humorously, the applicant's decisions to appeal, and challenges us to consider whether we would do -- or advise our clients to do -- the same.

Some applicants deserve to be ridiculed. As for attorneys, it is the curse of our esteemed profession to sometimes be at the mercy of clients that force us -- over our strong advice to the contrary -- to make silly, anemic arguments. This doesn't mean that these absurd arguments shouldn't be exposed to the world because of a perceived "chilling" factor, or because some of us are a little too sensitive to criticism.

At 7:59 PM, Anonymous Anonymous said...

@Frank: The appeal was filed pro se, no attorney invloved.

At 9:06 PM, Anonymous Jeff said...

Off the top of my head I can think of Meriwether's Restaurant and a Meriwether Condo here in Portland, Oregon, both referring to the explorer. But even so, I wouldn't place any bets that very many of my fellow Pacific Northwesterners know this.

At 7:40 AM, Anonymous Michael Hall said...

I like WYHA. I suspect that almost everyone reading The TTABlog knows that ultimately the client makes the decision to appeal.

Second, and putting aside this particular case, in my view it’s good to spotlight arguments that have no real shot on appeal. There are certain arguments that are not going to persuade anyone, and simply damage a practitioner’s credibility with the Board and examining attorneys. A repeat player who makes the same discredited arguments over and over at the PTO will, after a while, tend to be remembered for it.

At 8:33 AM, Anonymous Keith said...

Today's NY Post has article about "John Meriwether" closing down his hedge fund. First time I have seen a Meriwether mentioned in the press since the Lewis/Clark bicentennial.

At 8:40 AM, Blogger John L. Welch said...

Wasn't there a hobbit named Merriweather?

At 9:51 AM, Blogger John L. Welch said...

Michael Hall comments further at his Registration Ruminations blog here:

At 1:09 PM, Anonymous James Lindon said...

Meredith Meriwether - wasn't that a semi-famous actress? I probably would have appealed, but I can't fault the ttab. It does have the "look and feel" to me - but it's a close call.


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