1211.01(a)(v) Rare Surnames
The rarity of a surname is an important factor to be considered in determining whether a term is primarily merely a surname. In re Joint-Stock Co. “Baik,” 84 USPQ2d 1921, 1924 (TTAB 2007) (finding the extreme rarity of BAIK weighed against surname refusal); In re Benthin Mgmt. GmbH, 37 USPQ2d 1332, 1333 (TTAB 1995) (finding the fact that BENTHIN was a rare surname to be a factor weighing against a finding that the term would be perceived as primarily merely a surname); In re Sava Research Corp., 32 USPQ2d 1380, 1381 (TTAB 1994) (finding SAVA not primarily merely a surname, where there was evidence that the term had other meaning, no evidence that the term was the surname of anyone connected with applicant, and the term’s use as a surname was very rare); In re Garan Inc., 3 USPQ2d 1537 (TTAB 1987) (holding GARAN not primarily merely a surname). However, the fact that a surname is rare does not per se preclude a finding that a term is primarily merely a surname. Even a rare surname may be held primarily merely a surname if its primary significance to purchasers is that of a surname. See In re Etablissements Darty et Fils, 759 F.2d 15, 225 USPQ 652 (Fed. Cir. 1985) (holding DARTY primarily merely a surname); In re Rebo High Definition Studio Inc., 15 USPQ2d 1314 (TTAB 1990) (holding REBO primarily merely a surname); In re Pohang Iron & Steel Co., 230 USPQ 79 (TTAB 1986) (holding POSTEN primarily merely a surname). Regardless of the rarity of the surname, the test is whether the primary significance of the term to the purchasing public is that of a surname.
An issue to be considered in determining how rarely a term is used is the media attention or publicity accorded to public personalities who have the surname. A surname rarely appearing in birth records may nonetheless appear more routinely in news reports, so as to be broadly exposed to the general public. In re Gregory, 70 USPQ2d 1792, 1795 (TTAB 2004).