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 In re Masco Builder Cabinet Group, Serial No. 77309908 (June 15, 2009) [not precedential].
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.