TTABlog Test: Is "THE HARRIMAN HOTEL" Primarily Merely a Surname for Hotel Services?

The USPTO refused to register THE HARRIMAN HOTEL for hotel, real estate, and health spa services, deeming the mark to be primarily merely a surname under Section 2(e)(4). Applicant argued that HARRIMAN is a rare surname (ranking 6694th in the 2010 Census list of surnames occurring 100 or more times), and that, because William Averell Harriman is an historical figure, HARRIMAN would not likely be perceived by consumers as primarily a surname but rather would be seen as referring specifically to him. How do you think this came out? In re Harriman Hotel, LLC, Serial No. 90096825 (March 22, 2023) [not precedential] (Opinion by Judge Albert Zervas).

The Board first considered "the frequency of, and public exposure to, [HARRIMAN] as a surname … keeping in mind that ‘[t]he relevant question is not simply how frequently a surname appears . . . but whether the purchasing public for Applicant’s services is more likely to perceive Applicant’s proposed mark as a surname rather than as anything else." See, for example, Beds & Bars, 122 USPQ2d at 1551 (BELUSHI found to be primarily merely a surname even though only five people in the United States had the surname “Belushi”).

Examining Attorney Vivian Micznik First submitted evidence regarding William Averell Harriman, who "held positions of prominence during the not too distant past, and thus may be known to a segment of the U.S. population." Harriman was a prominent and accomplished businessman and politician who served as chairman of the Union Pacific Railroad, Governor of New York, Ambassador to the United Kingdom, Ambassador to the Soviet Union, Secretary of Commerce, Assistant Secretary of State and a Democratic presidential candidate in 1956. He also was the founder of Sun Valley Idaho, a winter sports destination.

The Board noted applicant’s statement on its website that it "honors those contributions and his legacy by proudly affixing his name to this stunning new hotel that calls his precious Sun Valley home," which statement suggests that "consumers are or will be exposed to Mr. Harriman’s name on Applicant’s website and that consumers hence are likely to view HARRIMAN, as it appears in Applicant’s proposed mark, as a surname."

The Board concluded that the evidence supports a finding that HARRIMAN is likely to be perceived primarily as a surname.

Turning to the historical name issue, the Board observed that "[t]he decisions addressing historical names generally draw a line between widely recognized names that are almost exclusively associated with a specific historical figure (are thus not considered primarily a surname)." Applicant's evidence in support of this argument was mostly "not of a recent vintage or mentions Mr. Harriman in passing, and hence is not particularly helpful to Applicant."

The Board also noted that others in the Harriman family attained some notoriety, including a wife, father, and brother. The Board therefore found that the term “Harriman” does not point only to one, historical figure.

Applicant also pointed to several geographical locations, including Harriman State Park in New York, Harriman State Park in Idaho, and Harriman Glacier in Alaska, to show that the term has non-surname meanings. However, there was no evidence that these localized uses would be known generally to U.S. consumers.

Finally, the Board found that the words THE and HOTEL do not change the surname significance of the proposed mark: "Combining a surname, such as HARRIMAN, with the generic name for the services, i.e., HOTEL, and adding the term THE, does not overcome the proposed mark’s surname significance."

And so, the Board affirmed the refusal.

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TTABlogger comment: What an incredible career!

Text Copyright John L. Welch 2023.