As usual, The Board applied the test set forth in In re Benthin. Applicant stated that "DICKMAN'S is not the proper surname of anyone connected with Applicant," but rather the mark was selected arbitrarily. Applicant conceded that "dickman" has no dictionary meaning.
Examining Attorney John S. Yard submitted LexisNexis results indicating that 1729 persons have the surname DICKMAN. He also submitted more than 100 news articles referring to individuals having that name. Applicant provided data from the 2000 census, revealing 5682 occurrences of the surname DICKMAN, ranking the name as the 5,601st for common surnames.
Finally, the Examining Attorney contended that DICKMAN has the structure of a surname, since "-MAN" is an extremely common suffix in surnames: e.g., Bachman, Goodman, Herman. Moreover, he maintained, the possessive form of the word does not diminish its surname significance, but rather reinforces it.
Applicant pointed out that the Examining Attorney had not provided evidentiary support for his assertion regarding these other names, but the Board deemed the other evidence sufficient to support the refusal. It found that the applied-for mark will be perceived by consumers as primarily merely a surname.
The fact that the number of persons with the surname represents a small percentage of the total U.S. population is inconsequential so long as the evidence sufficiently demonstrates that consumers are likely to primarily understand DICKMAN’S as a surname. In this case, the Examining Attorney has made such a prima facie showing. The evidence shows that the primary and almost exclusive manner in which the public is exposed to the term “dickman” is in the context of it being a surname.
The Board agreed with the Examining Attorney that the possessive ending of the mark reinforced its surname significance because consumers will believe that the identified goods are prepared and sold by someone with the surname "Dickman."
And so the Board affirmed the refusal
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Text Copyright John L. Welch 2016.