Tuesday, November 15, 2005

TTAB Affirms Surname Refusal of "MEARS" for Semiconductor Materials

As quick as you can say "Rick Mears," the Board affirmed a Section 2(e)(4) surname refusal of the mark MEARS for semiconductor materials. In re R.J. Mears LLC, Serial No. 78273336 (October 31, 2005) [not citable].

Examining Attorney Brendan D. McCauley relied on nearly 5,000 hits from the Lexis/Nexis USFIND database, 30 articles from a computerized search of the term MEARS, four third-party registrations in which the mark MEARS is registered on the Supplemental Register, a webpage from www.RootsWeb.com indicating that MEARS is a surname, and so-called negative dictionary evidence (from www.yourdictionary.com) to show that MEARS has no other meaning.

Applicant argued that MEARS is a rare surname and does not have the "look and feel" of a surname. It pulled out its calculator and came up with the futile argument that, based on the PTO's database evidence, a mere 0.00017641 or about 0.01% (one hundredth of one percent) of the total U.S. population has the surname MEARS.

The Board noted that "[t]here is no magic number of directory listings required to establish a prima facie surname case." Based on the PTO's evidence, the Board concluded that "a significant number of people in the United States have the surname 'Mears.'" As to Applicant's calculation:

"we find this 'percentage-of-the-entire-population" argument to be a hollow reed. The rich diversity of surnames in this country is amply reflected in the USFIND computer database evidence. If one were to take a statistical measurement of this database for common names like 'Smith' or 'Jones,' each would constitute a relatively small fraction of the total database content."

The Board noted that there was no "clear" evidence of record that someone with the surname MEARS is associated with Applicant. [TTABlog note: But see Applicant's website here.] The Board also noted that people named MEARS have been prominent in the field of auto racing, including Rick Mears, a four-time Indianapolis 500 winner. "The publicity regarding these individuals named MEARS indicates that the public will view the term as a surname."

Rick Mears

As to any non-surname meaning, the Board observed that Applicant "has not even identified any remote or obscure meanings for this term." Finally, as to look-and-feel, the Board pointed out that MEARS "has the structure and pronunciation of such surnames as Meers, Miers or Myers."

And so the Board affirmed the Section 2(e)(4) refusal to register.

Text Copyright John L. Welch 2005.


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