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Earnhardt v. Kerry Earnhardt, Inc.

Registrability of Surname-Based Marks Requires Two-Part Test

Earnhardt v. Kerry Earnhardt, Inc., (Fed. Cir. July 27, 2017) (Wallach, CHEN, Hughes) (TTAB) (3 of 5 stars)

Fed Cir vacates dismissal of Ms. Earnhardt’s opposition to KEI’s registration of EARNHARDT COLLECTION for furniture and custom construction of homes. At issue was whether the Board’s determination that EARNHARDT COLLECTION is not primarily a surname (which would make it non-registrable). Per Hutchinson, 852 F.2d 552 (Fed. Cir. 1988), the Board had to make two inquiries: (1) determine whether “collection” was “‘merely descriptive’ of the applicant’s goods and services;” and (2) determine whether adding the additional term to the surname altered the primary significance of the mark. The Board’s decision was unclear as to whether it had properly applied this test, and is vacated.

KEYWORDS: TRADEMARK; SURNAMES; OPPOSITION