Test Your TTAB Judge-Ability: Is CROMWELL for Safety Helmets Primarily Merely a Surname?
The PTO issued a Section 2(e)(4) refusal to register CROMWELL for "headgear for protection against accident or injury, and parts and fittings therefor ..." on the ground that the mark is primarily merely a surname. Applicant Helmet Integrated Systems contended that the mark's "primary significance is Oliver Cromwell, a British general, Puritan statesman, and Lord Protector of England from 1653-1658." How would you rule? In re Helmet Integrated Systems Ltd., Serial No. 77697443 (April 10, 2012) [not precedential].
The evidence indicated that there are 10,000 or more people with the surname CROMWELL in this country, and the Board therefore found that CROMWELL is not a rare surname. The Board also concluded that CROMWELL has the "look and sound" of a surname.
The main question was whether CROMWELL has any meaning other than as a surname. Applicant (a U.K. company) urged that CROMWELL is a given name, and that the primary significance of "Cromwell" is a reference to Oliver Cromwell, a British historical figure.
Applicant pointed to a website identifying 1,500 persons with the given name “Cromwell," but Examining Attorney Priscilla Milton countered with other websites that state that "Cromwell" is a very rare given name" and is "an uncommon first name for men but a very common last name for both men and women." [Some websites say that the moon is made of blue cheese. So should we believe them? - ed.]. The Board concluded that this infrequent use as a given name does not affect the mark's surname significance.
The main thrust of Applicant's argument, however, was that "Cromwell" is primarily a reference to Oliver Cromwell. It pointed to several websites and to reference book listings for "Cromwell" in support of its argument. The Board observed that Applicant must show that "[t]he name 'Cromwell' [is] so widely recognized as to be 'almost exclusively associated in commercial impression with the historical figure.'" In other words, it is the present day recognition of the name that is important, not its past historical significance.
The Board contrasted decisions regarding SOUZA (his music remains in the public's mind) and DA VINCI (still nearly exclusively associated with the 15th Century artist), with the MCKINLEY case (a past U.S. President of little current significance).
In view of the foregoing, we find that surname “Cromwell” is more akin to McKinley than Da Vinci. It is unlikely that American consumers would regard CROMWELL in connection with protective headgear, etc. as an arbitrary use of the name Oliver Cromwell, rather than merely a surname of any individual identified by that name. Accordingly, the evidence of “Cromwell” as a surname is greater than the evidence that “Cromwell” has any other significance.
And so the Board affirmed the refusal.
TTABlog comment: The SOUZA case involved fireworks and firework display services, a fact that increased the likelihood that the mark would bring to mind the name of the composer. Are there any goods you can think of that would, when branded CROMWELL, increase the likelihood that the Englishman would be brought to mind? Swords? Cutlery? Tea biscuits? Eccles pudding? Soused pig face?
Text Copyright John L. Welch 2012.