Tuesday, April 27, 2021

TTABlog Test: Is BARSKI Primarily Merely a Surname for Glassware and Related Goods?

The USPTO refused to register the proposed mark BARSKI for beverage glassware, pitchers, ice buckets, and various other items in Class 21, concluding that the mark is primarily merely a surname under Section 2(e)(4). The Examining Attorney relied on 415 entries in the Lexis.com Surname Database, references to eight individuals with that surname (including former MLB player, Chris Barski), negative dictionary evidence, and a Wikipedia entry stating that the suffix "ski" is often found in Polish names. Applicant argued that BARSKI is an extremely rare surname and the mark was derived from names of its founders, BaumgARten and ZablotSKY. How do you think this appeal came out? In re Majestic Gifts Inc., Serial No. 88682492 (April 12, 2021) [not precedential] (Opinion by Judge Cindy B. Greenbaum).

The record evidence established that “Barski” is an actual surname, but an uncommon one. No one associated with applicant bears the surname “Barski. On the other hand,"surnames of Polish origin often end with the letters “SKI”; and “Barski” has no other “ordinary language meaning."

Applicant’s argument concerning the origin of “Barski” as a combination of its founders’ surnames (neither of which includes the three-letter strings “bar” or “ski”) was unconvincing. [And irrelevant to consumer perception - ed.].

In any case, "the relevant question is whether, when applied to Applicant’s goods, the purchasing public for those goods is more likely to perceive the mark BARSKI, which is in standard characters, as a surname rather than as anything else."

The Board concluded that the evidence did not show "sufficient public exposure to the uncommon surname BARSKI from which we can conclude that consumers likely would perceive BARSKI as a surname." Cf. In re Tapio GmbH, 2020 USPQ2d 1137, at *10-11 (TTAB 2020) (highlighting evidence of “meaningful and fairly widespread public exposure” to the uncommon surname TAPIO “throughout the United States”).

Moreover, when viewed in association with the identified goods, which include barware such as beverage glassware, decanters, drinking glasses, glass beverageware, and ice buckets, we believe consumers likely would perceive BARSKI as a coined term, particularly as a clever bar-related play on the noun “brewski” (a U.S. slang term for “beer”), and that this meaning would be the primary perception of BARSKI to the public.

And so the Board reversed the refusal to register.

Read comments and post your comment here.

TTABlogger comment: How did you do? Ready for a brewski at your neighborhood barski?

Text Copyright John L. Welch 2021.


At 7:08 AM, Anonymous David H. Bernstein said...

I wonder whether the etymology isn’t from the well known “shotski” generic reference to a series of shot glass attached to a ski for a fun group shot experience common in bars in our ski town

At 1:01 PM, Anonymous WR Morris said...

Agree with David's comment. That was the first thing that came to mind, and it seems it would have made a much better argument in support of registration than the terrible name/acronym argument that was put forward. Although, as it turns out, SHOTSKI is not actually generic! https://tsdr.uspto.gov/#caseNumber=75713972&caseType=SERIAL_NO&searchType=statusSearch


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