Reversing a Surname Refusal, TTAB Finds BROE (Stylized) Has Acquired Distinctiveness

Although finding that the term BROE is primarily a surname, and that the stylization shown below does not make the mark inherently distinctive, the Board reversed this Section 2(e)(4) refusal because applicant established acquired distinctiveness under Section 2(f). In re Broe Management Company, LLC d/b/a The Broe Group, Serial No. 86715987 (August 11, 2017) [not precedential] (Opinion by Judge Michael B. Adlin).

Surname?: The evidence established that applicant is named for its founder and chief executive officer, Pat Broe. On its website, applicant describes itself as a "family-owned business." Negative dictionary evidence indicated that "broe" has no non-surname meaning and a Wikipedia entry for "broe" states that the word is a surname. Other evidence identified individuals with the surname BROE, and the namesite.com website list 1,250 persons with that surname.

Even though BROE is a rare surname, the record evidence established that it is still primarily a surname. In re Eximius Coffee, LLC, 120 USPQ2d 1276 (TTAB 2016) (finding ALDECOA primarily merely a surname).

Stylization?: As to the distinctiveness of of applicant's stylized version of BROE, the Board noted that surnames are typically displayed with an initial upper case letter. Neither the particular font nor the green letter "o" alters the primary significance of BROE given the other evidence in the record. Cf. In re Benthin Management GmbH, 37 USPQ2d 1332 (TTAB 1995) (stating that were it not for the marks “highly stylized” form, “we would find that the service mark BENTHIN … would be perceived as primarily merely a surname,” based on highly similar evidence to that presented here and in Eximius Coffee).

In short, the record leaves no doubt that when the purchasing public considers [the applied-for mark] in relation to Applicant’s investment and financial asset disposition services, it will primarily signify a surname, specifically that of Pat Broe whose family owns Broe Management Company d/b/a The Broe Group.

Acquired Distinctiveness? Although the applied-for mark had been in use for significantly less than five years, Applicant claimed acquired distinctiveness as to the word BROE, without regard to font or stylization, which mark had been in use for substantially more than five years (in fact, for more than forty years).

The Board observed that the USPTO has "a longstanding practice of allowing registration of surnames under Section 2(f) upon a showing of substantially exclusive and continuous use for five years. In re Adlon Brand GmbH & Co., KG, 120 USPQ2d 1717, 1722 n.33 (TTAB 2016). The Board found no reason not to follow that practice here, since it had already found that the applied-for mark creates the same commercial impression as the word BROE.

Judge Massielo, in the briefest of concurring opinions, agreed with the result but he would have found the stylization alone sufficient to avoid the surname refusal.

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TTABlog comment: Since the stylization does not change the pronunciation or meaning of the term, I side with Judge Adlin.

Text Copyright John L. Welch 2017.