TTAB Affirms Section 2(e)(4) Surname Refusal of GRISWALD
New TTAB Judge Michael B. Adlin penned the TTAB's opinion in this affirmance of a Section 2(e)(4) refusal to register GRISWALD for luggage, household goods, and clothing. The Board agreed with Examining Attorney Won T. Oh that GRISWALD is primarily merely a surname. In re Bedrock Brands, LP, Serial No. 85036916 (October 23, 2012) [not precedential].
The Board applied its traditional 2(e)(4) test: "(i) whether the surname is rare; (ii) whether anyone connected with applicant has the involved term as a surname; (iii) whether the term has any other recognized meaning; and (iv) whether the term has the 'look and feel' of a surname."
The Board deemed GRISWALD to be a "rare surname," since the evidence showed only 70 people in the United States have that surname. That factor weighed in Applicant's favor. [Under Judge Seeherman's approach in In re Joint-Stock Company "Baik", 84 USPQ2d 1921 (TTAB 2007) [precedential], this degree of rareness might well result in reversal of the refusal].
The second factor was neutral, there being no person having the surname GRISWALD associated with Applicant.
The Applicant and the PTO disagreed as to the third factor. Applicant provided evidence that "Griswald" is a given name in Germany, but there was no such evidence for the United States. The Board found persuasive the Examining Attorney's negative dictionary evidence showing that GRISWALD has no other meaning.
The parties also disagreed as to whether GRISWALD has the "look and feel" of a surname. The PTO pointed to 3,425 listings for the surname "Griswold," a close approximation to GRISWALD, and on Wikipedia evidence regarding the "Griswold" family in the National Lampoon's "Vacation" series of films. Applicant pointed to the lack of evidence that consumers would associate GRISWALD (spelled with an "A") with Griswold (with an "o"). The Board, however, found that GRISWALD does have the look and feel of a surname.
The Board concluded that, although GRISWALD is a rare surname, there was "no persuasive evidence in the record that it would be perceived as anything other than a surname in the United States." The Board therefore affirmed the refusal.
TTABlog comment: If the purpose of Section 2(e)(4) is to block registrations of marks that consumers will perceive as surnames, the decision is probably correct. But if its purpose is to make sure that surnames are available for use by others who have that surname, then under Judge Seeherman's analysis, in light of the rareness of the surname, the refusal should be reversed. So what is the purpose of Section 2(e)(4)? I discussed this issue a few years ago in Section IV of this article.
Text Copyright John L. Welch 2012.