TTABlog Test: Is CARLOW Primarily Merely a Surname for Real Estate Services?
The USPTO refused registration of the mark CARLOW for, inter alia, real estate and business center services, finding that the mark is primarily merely a surname under Section 2(e)(4). Have you ever heard of someone named Carlow? How do you think this appeal came out? In re SLC Hauppauge Development, LLC, Serial No. 90562295 (June 27, 2023) [not precedential] (Opinion by Judge Jonathan Hudis).
The Board first found CARLOW to be a "rare" surname. "Out of a country of over 330 million people, the incidence of CARLOW as a surname hovers only around 1,000; and there is evidence of record that the incidence of CARLOW as a first or given name is above that."
The fact that no one associated with applicant has the surname CARLOW "weighs in [A]pplicant's favor," according to the examining attorney. [Seems neutral to me - ed.]
As to non-surname meanings of CARLOW, in addition to the "not-insignificant incidence" of CARLOW as a first or given name, CARLOW is a “geographical name;” that is, a “county of southeastern Ireland in the province of Leinster” and a “town, [which is the] capital of the Irish county of Carlow.”
As to whether CARLOW has the structure and pronunciation of a surname, the examining attorney's evidence related almost exclusively to names in England and Wales. "These references thus tell us nothing about consumer perceptions in the United States." The Board was thus not persuaded that CARLOW has the structure and pronunciation of a surname.
On balance, we find that while the Examining Attorney originally made a prima facie case that CARLOW is primarily merely a surname, Applicant sufficiently rebutted the Examining Attorney’s evidence such that “we … resolve doubts in favor of … [A]pplicant and pass the mark to publication with the knowledge that others who have the same surname and use it or wish to use it for the same or similar … services can file a notice of opposition.”
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Text Copyright John L. Welch 2023.
posted by John L. Welch @ 6/29/2023
5 comments
5 Comments:
I immediately think surname... the Examining Attorney really must have dropped the ball on the evidence front.
“we … resolve doubts in favor of … [A]pplicant and pass the mark to publication with the knowledge that others who have the same surname and use it or wish to use it for the same or similar … services can file a notice of opposition.”
Would someone having standing to oppose merely because their name is Conrad Addision Carlow?
Good question. I think he would have standing to oppose, but doubtful he could prove that CARLOW is primarily merely a surname in light of the evidence in this record.
That is, standing to oppose if he can allege that he plans to use the name in a business of some sort and might be hampered by registration of the mark
My cousins grew up in Carlow town and their mom (my aunt) still live there. Never heard it nor would I have thought it was a surname,
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