TTABlog Test: Is BREAUXS for Barbecue Grills Primarily Merely a Surname?

The USPTO refused to register the proposed mark BREAUXS for barbecue grills, electric fryers, and the like, finding it to be primarily merely a surname under Section 2(e)(4). Applicant Plummer appealed, arguing that "breaux" is commonly understood as a slang term for "bro," particularly in connection with the "quintessentially masculine American pastime" of barbecue grilling. How do you think this came out? In re MacDonald Plummer, Serial No. 88155158 (June 18, 2021) [not precedential] (Opinion by Judge Peter W. Cataldo).

The evidence showed that "Breaux" is "an actual surname, and is not rare." The term "Breauxs" is likewise to be considered a surname, since "the surname significance of a term is not diminished by the fact that the term is presented in its plural or possessive form." 

Applicant Plummer contended that "Breaux" has a non-surname meaning: it would be understood "as a Cajun slang equivalent or play on the word BROS," and thus will be seen as a reference to the "bro" subculture. Plummer submitted evidence regarding the meaning of the term "bro," and an article discussing the grilling and the masculine culture traditionally surrounding grilling. An Urban Dictionary entry defined "breaux" as a synonym for “bro or brajh, but in this case it’s that guy in the bro crew that is fully cajun and all of this family members [sic] live in new orleans or anywhere in Louisiana for that matter.” Plummer raised this question: "how else does one imagine a Cajun 'breaux' other than standing at a grill with other guys and beers in hand?"

Examining Attorney Jacob W. Neu argued that the surname meaning of "breaux" is "far more familiar to consumers than the meaning of 'breaux' as a novel spelling of 'bro.'" He pointed out that the Urban Dictionary entries were dated 2007 and 2009, whereas the current entry for "breaux" refers to the designer Matteo Breaux.

The Board agreed with the Examining Attorney. The evidence showed that there is a non-surname meaning for "breaux," but "the mere existence of other non-surname meanings of a mark does not preclude a finding that it is primarily merely a surname. The question is "to what degree, if any, the public would associate the particular meaning with the goods or services in the application."

[O]n this record it is not clear to what extent, if any, the term “breaux” is understood to be synonymous with “bro” outside of fans of LSU athletics. Particularly given that a large percentage of individuals with the surname “Breaux” appear to live in Louisiana, it is more likely that consumers viewing BREAUXS will perceive the mark as a plural of the surname.

The Board concluded that, in light of the strong evidence of the surname significance of BREAUX(S), consumers would apply the surname meaning to the mark.

And so, the Board affirmed the refusal to register.

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TTABlogger comment: Compare this decision with In re Isabella Fiore [TTABlogged here], where the mark FIORE was found not to be primarily merely as surname because Italian speakers would translate the word as "flower."

Text Copyright John L. Welch 2021.