United States: TTABlog Test: Is "KERRIDGE COMMERCIAL SYSTEMS" Primarily Merely A Surname?

Last Updated: August 12 2019
Article by John L. Welch

The USPTO refused to register the mark KERRIDGE COMMERCIAL SYSTEMS for various goods and services, all for use in the distribution, wholesale, merchant and retail industries [COMMERCIAL SYSTEMS disclaimed], finding the mark to be primarily merely a surname under Section 2(e)(4). The evidence showed at least 193 results for the surname "Kerridge" from 18 different U.S. states, but Applicant argued that this is an insignificant portion of the U.S. population. How do you think this came out? In re Kerridge Commercial Systems Limited, Application Serial No. 87383302 (August 6, 2019) [not precedential] (Opinion by Judge Elizabeth A. Dunn).

Kerridge, England

Evidentiary issues: The Examining Attorney submitted a screenshot purporting to show that KERRIDGE is the name of applicant's founder, but because the document lacked a date and a URL, the Board refused to consider it. See In re I-Coat Company, LLC, 126 USPQ2d 1730, 1733 (TTAB 2018) and In re Mueller Sports Medicine, Inc., 126 USPQ2d 1584, 1587 (TTAB 2018). Applicant submitted two webpages to its brief on appeal (one referencing Kerridge, England), but the submission was untimely and the Board ignored it. The Examining Attorney asked the Board to take judicial notice of an online search for the term KERRIDGE and a dictionary excerpt; as to the former, the Board does not take judicial notice of online search results, and as to the latter the Board was "reluctant to exercise this discretion where, as here, Applicant has no opportunity to counter the evidence." [Odd. The Board often takes judicial notice of dictionary definitions - ed.].

Surname Significance: In determining whether the purchasing public would perceive a purported mark as primarily merely a surname, the Board may consider: 1) whether the applicant adopted a principal's name and used it in a way that revealed its surname significance; 2) whether the term has a nonsurname "ordinary language" meaning; and 3) the extent to which the term is used by others as a surname. In re Etablissements Darty et Fils, 759 F.2d 15, 225 USPQ 652, 653 (Fed. Cir. 1985).

The record establishes that the term KERRIDGE is a surname. A search of Whitepages.com revealed at least 193 results for "Kerridge" from 18 different U.S. states. Applicant argued that this is an insignificant portion of the U.S. population of more than 300 million people. The Board observed, however, that "[t[he relative rareness of a name is not necessarily relevant 'given the large number of different surnames in the United States, even the most common surnames would represent but small fractions of such a database.'"

In fact, even surnames less common than KERRIDGE have been found to be primarily merely a surname in certain cases. See In re Beds & Bars Limited, 122 USPQ2d 1546 (TTAB 2017) (5 individuals named BELUSHI); In re Adlon Brand GmbH & Co. KG, 120 USPQ2d 1717, 1720 (TTAB 2016) (75 individuals named ADLON); In re Eximius Coffee, LLC, 120 USPQ2d at 1280 (233 people with the surname ALDECO).

Applicant pointed out that there is no evidence showing that anyone named Kerridge is associated with the company. However, while such a connection would weigh in favor of the refusal, the lack thereof does not reduce the likelihood that relevant consumers would perceived the term as a surname.

Examining Attorney Doritt Carroll asserted that KERRIDGE is similar to other surnames such as BERRIDGE, DERRIDGE, FERRIDGE, and SERRIDGE but the Board noted that these surnames were not shown to "very common." In any event, the question of whether a term has the structure and pronunciation of a surname is a "decidedly subjective" inquiry. In re Eximius Coffee, L.L.C, 120 USPQ2d at 1280. Thus this evidence, "at best, offers some corroboration of the Whitepages.com evidence that the primary significance of KERRIDGE is as a surname."

Applicant urged that KERRIDGE is similar in sound and appearance to such common words as porridge, courage, and carriage, and to geographic terms such as Cambridge and Woodbridge, but the Board rejected the notion that KERRIDGE would be mistaken for these words or would have the same "ordinary word" significance.

As to the additional wording, COMMERCIAL SYSTEMS, the Board recognized that it must determine "whether the primary significance of the mark as a whole in connection with the recited goods and services is that of the surname." Citing Earnhardt v. Kerry Earnhardt, Inc., 123 USPQ2d at 1413. A critical element in the determination is the relative distinctiveness of the second term in the mark. Id.; accord, In re Weiss Watch Co., 123 USPQ2d at 1206.

Where, as here, descriptive wording is appended to a surname, the combination when viewed as a whole in the context of the Applicant's goods will generally be considered to be primarily merely a surname under Section 2(e)(4). See, e.g., Azeka Bldg. Corp. v. Azeka, 122 USPQ2d at 1482 n.9 (TTAB 2017) (AZEKA'S RIBS primarily merely a surname for barbeque sauce).

Noting that applicant disclaimed COMMERCIAL SYSTEMS and did not contest the issue of descriptiveness, the Board concluded that KERRIDGE COMMERCIAL SYSTEMS is primarily merely a surname, and so it affirmed the refusal.

The TTABlog

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