Although Rare, LEARDI Primarily Merely a Surname, Says TTAB
The Board affirmed a Section 2(e)(4) refusal to register the mark LEARDI (in the stylized form below) for business management services, finding the mark to be primarily merely a surname. Although LEARDI is a rare surname, applicant indicated that it is the surname of Paolo Roberto Leardi, whose consent is of record. And there was no evidence of record that LEARDI would be viewed as anything but a surname. In re Markbens Administradora de Bens Eireli, Serial No. 85713043 (September 9, 2014) [not precedential].
Examining Attorney Leslie L. Richards submitted a listing from a nationwide telephone directory indicating that 62 individuals in this country have the surname LEARDI. Although finding that LEARDI is a rare surname, the Board pointed out that "even a rare surname is unregistrable if its primary significance to purchasers is a surname." [But if the name is that rare, does it have any significance to the typical purchaser? - ed.].
Applicant indicated that LEARDI identifies Paulo Roberto Leardi, whose consent is of record. "A term that is the surname of someone associated with the Applicant is evidence of the surname significance of the term LEARDI. [Note: Applicant is a Brazilian company. Is Paulo Roberto Leardi a US citizen or resident? If not, what is the significance of his surname? - ed.]
"Negative dictionary evidence" from the Internet showed no definitions for LEARDI, but did provide examples of LEARDI used as a surname. And the Board found that it has the look and sound of a surname because the only public use of the word is as a surname, and further because it "appears to be a cohesive term with no meaning other than as a surname."
Of course, the stylization of the mark was insufficiently distinctive to create a separate commercial impression. "The term, although in stylized letters, would still be perceived as a surname."
The Board therefore affirmed the refusal.
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TTABlog note: This decision takes the opposite approach to that which Judge Seeherman espoused in In re "Baik" [TTABlogged here] and other cases, where she posited that the rareness of the surname is the most important factor. In her view:
"The purpose behind prohibiting the registration of marks that are primarily merely surnames is not to protect the public from exposure to surnames, as though there were something offensive in viewing a surname. Rather, the purpose behind Section 2(e)(4) is to keep surnames available for people who wish to use their own surnames in their businesses ...." ***
"If the surname is extremely rare, it is also extremely unlikely that someone other than the applicant will want to use the surname for the same or related goods or services as that of the applicant."
Text Copyright John L. Welch 2014.