TTABlog Test: Is CAFFREY Primarily Merely a Surname for Plumbing Products?

The USPTO refused to register the proposed mark CAFFREY for "plumbing products, namely, faucets, showerheads and toilets; lighting products, namely, lighting fixtures," deeming the mark to be primarily merely a surname under Section 2(e)(4). Examining Attorney Joseph P. McCarthy pointed to 5728 entries for “Caffrey” in the Whitepages Database, and to "Neal George Caffrey," the main character of the USA Network original series White Collar. Applicant argued that the mark is fanciful and "extremely rare." How do you think this came out? In re Delta Faucet Company, Serial No. 88411428 (January 29, 2021) [not precedential] (Opinion by Judge Cynthia C. Lynch).

In addition to the Whitepages evidence, the examining attorney submitted search results from the Lexis.com Surname Database showing 5530 entries for "Caffrey," negative dictionary evidence containing no entry for "caffrey," website evidence stating the "Caffrey" is an Irish surname, various internet references to the White Collar character, and several articles about the NFL player Christian McCaffrey. Applicant Delta did not submit any evidence.

The evidence of thousands of individuals in a number of locations in the United States who bear the CAFFREY surname show that it “is not so unusual that such significance would not be recognized by a substantial number of persons.” Darty, 225 USPQ at 653. In addition, the use of the surname for the lead character in a USA Network series further demonstrates consumer exposure to CAFFREY as a surname.

Applicant Delta feebly argued that CAFFREY does not have the structure and pronunciation of a surname, and is merely fanciful. The Board was unmoved.

Overall, the record contains multiple sources showing that CAFFREY is an actual surname to which consumers have been exposed, and for which no other meaning exists. The record also features some proof that the structure and pronunciation of CAFFREY is similar to the MCCAFFREY surname of a well-known sports figure.

And so the Board affirmed the refusal.

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TTABlogger comment: I think this as WYHA? Do you? 

Text Copyright John L. Welch 2021.