Anheuser-Busch, Inc.

Trademark Trial and Appeal Board

Jul 18, 2001

No. 75670355 (T.T.A.B. Jul. 18, 2001)

7/18/01

Paper No. 11
DEB

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Anheuser-Busch, Inc.
________

Serial No. 75/670,355
_______

Scott D. Miller of Anheuser-Busch, Inc. and Douglas N.
Masters of Pattishall McAuliffe Newbury Hilliard &
Geraldson for Anheuser-Busch, Inc.

Danielle I. Mattessich, Trademark Examining Attorney, Law
Office 101 (Jerry Price, Managing Attorney).
_______

Before Hairston, Bucher and Bottorff, Administrative
Trademark Judges.
Opinion by Bucher, Administrative Trademark Judge:
An intent-to-use application has been filed by
Anheuser-Busch, Inc. to register the term HARRINGTON’S for
“beer” in International Class 32.1
The Trademark Examining Attorney has refused
registration under Section 2(e)(4) of the Trademark Act, 15

1 Application Serial No. 75/670,355, filed March 26, 1999,
based upon a bona fide intention to use the mark in commerce
under Section 1(b), 15 U.S.C. §1051(b).
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Serial No. 75/670,355
2
U.S.C. §1052(e)(4), on the ground that applicant’s mark is
primarily merely a surname.
When the refusal to register was made final, applicant
appealed. Applicant and the Trademark Examining Attorney
have filed briefs. An oral hearing was not requested.
We affirm the refusal to register.
In support of the surname refusal, the Trademark
Examining Attorney has made of record the following: the
results of a search of a database containing eighty million
names, finding 28,091 listings of the “Harrington” surname
from PHONEDISC POWERFINDER USA ONE 1998 (4th ed.); a page
from Merriam-Webster’s Geographical Dictionary (3rd ed.)
listing no place named “Harrington” alone; a page from The
Random House College Dictionary (Rev. ed.) showing no entry
for the word “Harrington”; as well as an excerpt from a Web
site returning no hits for “Harrington,” as a baby’s name.
Applicant argues that the Trademark Examining Attorney
has failed to establish a prima facie surname case.
Applicant challenges the Trademark Examining Attorney’s
PHONEDISC evidence on the ground that the quantum of
evidence submitted by the Trademark Examining Attorney is
indeterminate of the primary significance of the term to
purchasers. Applicant asserts that “Harrington” is also
the name of small villages in Canada and in England. In
Serial No. 75/670,355
3
support of its position, applicant has submitted a page
from a Web site maintained by Bryce W. Harrington and John
R. Harrington on behalf of the Harrington Family Genealogy
Association. Finally, applicant has also provided a copy
of a small portion of a larger Web site from Agriculture
Western Australia on “Harrington barley in Western
Australia: Grain dormancy and harvesting.”2
The test for determining whether a mark is primarily
merely a surname is the primary significance of the mark to
the purchasing public. See In re Hutchinson Technology
Inc., 852 F.2d 552, 554, 7 UPQ2d 1490, 1492 (Fed. Cir.
1988), citing In re Kahan & Weisz Jewelry Mfg. Corp., 508
F.2d 831, 184 USPQ 421 (CCPA 1975) and In re Harris-
Intertype Corp., 518 F.2d 629, 186 USPQ 238 (CCPA 1975).
The initial burden is on the Trademark Examining Attorney
to establish a prima facie case that a mark is primarily
merely a surname. See In re Etablissements Darty et Fils,
759 F.2d 15, 16, 225 USPQ 652, 653 (Fed. Cir. 1985). After
the Trademark Examining Attorney establishes a prima facie
case, the burden shifts to the applicant to rebut this
finding.

2 http://www.agric.wa.gov.au/agency/Pubns/farmnote/1996/F03696.htm

Serial No. 75/670,355
4
The Board, in the past, has considered several
different factors in making a surname determination under
Section 2(e)(4): (i) the degree of surname rareness; (ii)
whether anyone connected with applicant has the surname;
(iii) whether the term has any recognized meaning other
than that of a surname; and (iv) the structure and
pronunciation or “look and sound” of the surname. In re
Benthin Management GmbH, 37 USPQ2d 1332 (TTAB 1995).
There is no doubt that the Trademark Examining
Attorney has met her initial burden of establishing that
HARRINGTON’S would be perceived by consumers as primarily
merely a surname. In particular, the Trademark Examining
Attorney has presented evidence of more than twenty-eight
thousand HARRINGTON surname references from the PHONEDISC
database, along with proof that the word “Harrington” does
not appear in an unabridged, English-language dictionary or
a geographical dictionary. The Court of Appeals for the
Federal Circuit has held that this type of evidence is
sufficient to establish a prima facie surname case. See
Hutchinson Technology, 852 F.2d at 554, 7 USPQ2d at 1492;
Darty, 759 F.2d at 16, 225 USPQ at 653; see also 2 J.
Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION,
§13.30, p. 13-50 (4th ed. 1999).
Serial No. 75/670,355
5
The Trademark Examining Attorney’s PHONEDISC evidence
is collected from telephone directories and address books
across the country. There is no magic number of directory
listings required to establish a prima facie surname case.
In re Cazes, 21 USPQ2d 1796, 1797 (TTAB 1991); In re
Industrie Pirelli Societa per Azioni, 9 USPQ2d 1564, 1566
(TTAB 1988), aff’d unpublished decision, No. 89-1231 (Fed.
Cir. 1989). It is reasonable to conclude from these
submissions that HARRINGTON has had measurable public
exposure.3 Even if “Harrington” were to be found to be an
uncommon surname, it is by no means a decidedly rare
surname.4 From more than twenty-eight thousand HARRINGTON
surname references in the PHONEDISC database, we conclude

3 To the extent applicant contends that “Harrington” is an
uncommon surname (a conclusion with which we disagree), we would
point out that even uncommon surnames may not be registrable on
the Principal Register. See Industrie Pirelli, 9 USPQ2d at 1566.
4 This evidence is far more significant than the number of
listings presented in other cases where the surname has been
categorized as “rare.” See e.g. Kahan & Weisz, 508 F.2d at 832,
184 USPQ at 422 (six DUCHARME surname telephone directory
listings); In re Sava Research Corp., 32 USPQ2d 1380 (TTAB
1994)(one hundred SAVA surname telephone directory listings);
Benthin Management, 37 USPQ2d at 1333 (one hundred BENTHIN
surname telephone directory listings); In re Garan, Inc., 3
USPQ2d 1537 (TTAB 1987)(six GARAN telephone directory listings
and one NEXIS listing). This is one of four factors. Hence, the
quantum of PHONEDISC evidence which may be persuasive for finding
surname significance in one case may be insufficient in another
because of differences in the surnames themselves and/or
consideration of the other relevant surname factors. Darty,
supra.
Serial No. 75/670,355
6
that “Harrington” is a relatively common surname in the
United States.
Applicant dismisses the tens of thousands of listings
from the PHONEDISC database as representing “… .0351% of
the total number of listings… .” However, we find this
“percentage-of-the-entire-population” argument to be a
hollow reed. The rich diversity of surnames in this
country is amply reflected in the PHONEDISC computer
database evidence. If one were to take a statistical
measurement of this database for common names like “Smith”
or “Jones,” each would constitute a relatively small
fraction of the total database content.
As to the second Benthin factor, we recognize that no
one connected to Anheuser-Busch has been shown to have the
“Harrington” surname. If a Harrington were associated in
some way with applicant, it could well corroborate the
public’s recognition of the term as a surname. However,
logic tells us that the converse is not necessarily true,
i.e., the mere fact that this query comes up negative
herein cannot compel the conclusion that consumers will
perceive the term as a non-surname.
In weighing the third Benthin factor, we have
considered applicant’s contention that “Harrington” has
recognized meanings other than that of a surname. However,
Serial No. 75/670,355
7
both the Benthin decision and our primary reviewing court
clearly require that the other meanings be “recognized” by
a significant number of people. See Harris-Intertype,
supra; Benthin Management, supra. We do not believe that a
significant number of people would recognize the other
meanings proffered in this case because they are remote or
obscure. Thus, they do not rebut the Trademark Examining
Attorney’s prima facie surname case. The mere fact that
the word “Harrington” has other obscure or remote meanings
is insufficient to show that it will not be perceived as
“primarily merely a surname.” See Harris-Intertype, supra;
In re Hamilton Pharmaceuticals Ltd., 27 USPQ2d 1939, 1942
(TTAB 1993). Even applicant’s own submission of a web page
is drawn from a Harrington family genealogy site, and as to
its significance, does nothing to bolster applicant’s case.
One of the entries says: “Harrington, Canada” VERY small
town in southern Ontario. It is so small that it would not
even show up in the index of most maps… .” See Harris-
Intertype, 518 F.2d at 631 n.4, 186 USPQ at 239 n.4
(Harris, Missouri, population 174, and Harris, Minnesota,
population 559 held obscure). This same Web page suggests
there may be as many as three small towns in Great Britain
(on the west coast, close to Whitehaven, centrally located
close to Northampton, and in the east, close to Alford).
Serial No. 75/670,355
8
Applicant certainly has not demonstrated that consumers in
the United States would recognize that “Harrington” is the
name of a place (or places) in Canada or in England.5
Similarly, we have to presume that if Harrington, Delaware
were more than a small village, applicant would have
fleshed out the record to support an alternative conclusion
that the geographical significance of this place name is
strong enough in the United States to create such
recognition on the part of consumers. Finally, as to the
“person locator” information submitted by applicant, four
hits were for “Harrington Johnson” (with multiple
references to the same individual) and seven were for
various individuals, all named “Harrington Smith.” There
is no other usage of “Harrington” as a given name anywhere
in the record. We agree with the Trademark Examining
Attorney that compared with more than twenty-eight thousand
surname references, this handful of uses of “Harrington” as
a given name is totally insignificant.6

5 Surnames are routinely used as key parts of the names of
streets, neighborhoods, towns, mountains and so forth. See
Harris-Intertype, supra; In re Champion International Corp., 229
USPQ 550, 551 (TTAB 1985). Given that it is a common practice to
name places after individuals, it is likely that one could trace
the historical origins of the three small towns called
“Harrington” that are situated in England, as well as the village
of “Harrington” near Stratford, Canada, to the “Harrington”
surname of English families that once lived in those localities.
6 This conclusion is also corroborated by the fact that no
names were found which matched the Trademark Examining Attorney’s
Serial No. 75/670,355
9
Similarly, applicant points to yet another alleged
non-surname meaning (i.e., a variety of barley). We note
that according to the abbreviated portion of a larger Web
site about “Harrington barley” (submitted by applicant),7
this particular strain of barley is used in Australia,
Canada, northern New South Wales and Tasmania. However,
there is no evidence in the file that this variety of
malting barley is even sold in the United States.
Moreover, the absence of entries in several unabridged
English language dictionaries commonly used in the United
States suggests to us that this alleged non-surname
significance is nonexistent in the United States.8
Both the applicant and the Trademark Examining
Attorney have pointed to the federal registry to support
their respective positions. However, we find that the
Trademark Examining Attorney has correctly and succinctly
reviewed all the registrations of record as set forth
below, and we conclude that contrary to applicant’s
assertions, the U.S. Patent and Trademark Office has been
remarkably consistent on its treatment of this term:

search criteria for Harrington as a given name for a baby on the
Web site, http://www.parenthood.com/parent_cfmfiles/babynames.cfm
7 See footnote 2.
8 On the other hand, if the evidence of record showed that
this usage for malting barley were widespread in the United
Serial No. 75/670,355
10
Furthermore, the PTO has consistently
treated the term HARRINGTON as a surname.
The registrations made of record by the
Applicant are all consistent with the PTO's
practice and policy regarding the treatment
of surnames under the Trademark Act.
Generally, a surname combined with
additional distinctive matter, such as a
merely descriptive term, another surname, a
given name, and/or a design element, is not
considered to be primarily merely a surname
under §2(e)(4). See TMEP §1211.01(b).
Thus, the marks HARRINGTON’S HOT IRISH (Reg.
No. 1,907,901), HARRINGTON’S HODGSON MILL
(Reg. No. 1,225,266), ADAM HARRINGTON (Reg.
No. 2,020,384),ADAM HARRINGTON EXCLUSIVES &
DESIGN (Reg. No. 2,146,343), HARRINGTON PARK
PRESS (Reg. No. 2,271,880), THEODORE
HARRINGTON CO. (Reg. No. 505,788),
HARRINGTON & RICHARDSON (U.S. Registration
No. 1,749,367), WESSON & HARRINGTON (Reg.
No. 1,896,918), and HARRINGTON GAY MEN'S
FICTION QUARTERLY (Reg. No. 2,388,368) are
registered on the Principal Register because
the term HARRINGTON appears in the
respective marks with additional distinctive
matter. [FN 2: The examiner has italicized
and underlined the distinctive matter in
these registrations for informational
purposes.] Furthermore, the marks
HARRINGTON (U.S. Reg. No. 1,235,605),
HARRINGTON (Reg. No. 1,664,693), and
HARRINGTON INSTITUTE OF INTERIOR DESIGN
(Reg. No. 2,328,788) are registered on the
Principal Register because the registrants
in these cases have proven that the
respective marks have acquired
distinctiveness under §2(f) of the Trademark
Act. Finally, HARRINGTON WEALTH MANAGEMENT
(Reg. No. 2,384,362) is registered on the
Supplemental Register, also evidencing the
primary surname significance of the term
HARRINGTON. Thus, the PTO has consistently
treated the term HARRINGTON as a surname.

States, then as applied to beer, presumably the refusal would
have been more correctly made under Section 2(e)(1) of the Act.
Serial No. 75/670,355
11
Finally, as to the fourth Benthin factor, contrary to
applicant’s contention, it is the view of the Board that
“HARRINGTON’S” has the structure and pronunciation of a
surname, not of an arbitrary designation. See Garan, 3
USPQ2d at 1538; Industrie Pirelli, 9 USPQ2d at 1566. In
fact, judging this matter simply by its look and feel,
“HARRINGTON” seems to fit the archetype of a Scottish or
British surnames, differing only in a single vowel, for
example, from a similar American surname, Herrington.
Furthermore, contrary to applicant’s contentions, we find
that the possessive form of the term serves only to
excentuate, not to diminish, the surname look and feel of
the applied for matter.
Decision: The refusal to register the term
HARRINGTON’S under Section 2(e)(4) is affirmed.