Delta Faucet Company

Trademark Trial and Appeal Board

Jan 14, 2021

88411380 (T.T.A.B. Jan. 14, 2021)

This Opinion is not a
Precedent of the TTAB

Mailed: January 14, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Delta Faucet Company
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Serial No. 88411380
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Edgar A. Zarins, Esq. Masco Corporation
for Delta Faucet Company.
Joseph P. McCarthy, Trademark Examining Attorney, Law Office 127,
Mark Pilaro, Managing Attorney.
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Before Kuhlke, Goodman and Larkin,
Administrative Trademark Judges.

Opinion by Goodman, Administrative Trademark Judge:
Delta Faucet Company (“Applicant”) seeks registration on the Principal Register
of the mark LAMPARD (in standard characters) for
plumbing products, namely, faucets, showerheads and
toilets; lighting products, namely, lighting fixtures in
International Class 11.1

1 Application Serial No. 88411380 was filed on May 1, 2019, based upon applicant’s assertion
of a bona fide intention to use the mark in commerce under Section 1(b) of the Trademark
Act, 15 U.S.C. § 1051(b).
Page references to the application record refer to the online database of the USPTO’s
Trademark Status & Document Retrieval (TSDR) system. References to the briefs on appeal
refer to the Board’s TTABVUE docket system.
Serial No. 88411380
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The Trademark Examining Attorney has refused registration of Applicant’s mark
under Trademark Act Section 2(e)(4), 15 U.S.C. §1052(e)(4) on the ground that
LAMPARD is primarily merely a surname.
After the Trademark Examining Attorney made the refusal final, Applicant
appealed to this Board. We affirm the refusal to register.
I. Section 2(e)(4) Refusal
Section 2(e)(4) of the Trademark Act precludes registration of a mark on the
Principal Register which is “primarily merely a surname,” without a showing of
acquired distinctiveness under Section 2(f) of the Act, 15 U.S.C. § 1052(f). A term is
primarily merely a surname if, when viewed in relation to the goods or services for
which registration is sought, its primary significance to the purchasing public is that
of a surname. See Earnhardt v. Kerry Earnhardt, Inc., 846 F.3d 1374, 123 USPQ2d
1411, 1413 (Fed. Cir. 2017); In re Beds & Bars Ltd., 122 USPQ2d 1546, 1548 (TTAB
2017).
Whether the primary significance of an applied-for term is merely that of a
surname is a question of fact. See In re Etablissments Darty et Fils, 759 F.2d 15, 225
USPQ 652, 653-54 (Fed. Cir. 1985). There is no rule as to the kind or amount of
evidence necessary to show that a term would be perceived as primarily merely a
surname. This question must be resolved on a case-by-case basis. Id. at 654; see also,
e.g., In re Pohang Iron & Steel Co., 230 USPQ 79, 79 (TTAB 1986). The entire record
is examined to determine the primary significance of a term. If there is any doubt, we
Serial No. 88411380
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“are inclined to resolve such doubts in favor of applicant.” In re Benthin Mgmt. GmbH,
37 USPQ2d 1332, 1334 (TTAB 1995).
When we are faced with a Section 2(e)(4) refusal of a term in standard character
form, with no other literal or design elements, we consider the impact the applied-for
term has or would have on the purchasing public because “it is that impact or
impression which should be evaluated in determining whether or not the primary
significance of a word when applied to a product is a surname significance. If it is,
and it is only that, then it is primarily merely a surname.” In re Harris-Intertype
Corp., 518 F.2d 629, 186 USPQ 238, 239 (CCPA 1975) (quoting Ex parte Rivera Watch
Corp., 106 USPQ 145, 149 (Comm’r Pat. 1955)) (emphasis in original).
To determine whether the purchasing public would perceive the term LAMPARD
as primarily merely a surname, we consider several inquiries including: (1) whether
anyone connected with Applicant has this surname; (2) whether the term has a non-
surname “ordinary language” meaning; and (3) the extent to which the term is used
by others and encountered as a surname. In re Etablissements Darty et Fils, 759 F.2d
15, 225 USPQ 652, 653 (Fed. Cir. 1985); In re tapio GmbH, 2020 USPQ2d 11387, at
*8-9 (TTAB 2020). In addition to the list of examples of inquiries articulated in Darty,
the Board articulated two additional examples of inquiry in In re Benthin, 37 USPQ2d
at 1333-34, (4) whether the term has the “structure and pronunciation” of a surname;
and (5) whether the stylization of lettering is distinctive enough to cause the mark
not to be perceived as primarily merely a surname. These inquiries are not exclusive
and any of these circumstances—singly or in combination—and any other relevant
Serial No. 88411380
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circumstances, may shape the analysis in a particular case. In re Eximius Coffee,
LLC, 120 USPQ2d 1276, 1278 (TTAB 2016); see also In re Integrated Embedded, 120
USPQ2d 1504, 1506 n.4 (TTAB 2016).
In this case, Applicant and the Examining Attorney have presented evidence
and/or arguments regarding the above-listed inquiries, but both acknowledge that
the stylization is not applicable because the mark is in standard characters.
Applicant’s brief, 4 TTABVUE 5; Examining Attorney’s brief, 6 TTABVUE 9. See
Integrated Embedded, 120 USPQ2d at 1506 n.4; In re Yeley, 85 USPQ2d 1150, 1151
(TTAB 2007). We review the four remaining inquiries, but in making our
determination we weigh them together and accord the appropriate weight to each one
based on the evidence of record.
A. The Extent to Which LAMPARD is Encountered as a Surname
The Examining Attorney submitted news articles and database evidence to
support the argument that the public is exposed to LAMPARD as a surname. The
Examining Attorney relies on three news articles (bleacher report, espn.com and the
Guardian (a U.K. publication)), about Frank Lampard who is the head coach of the
Chelsea (U.K.) football club in the English Premier League, and a former professional
athlete who was a top scoring mid-fielder when he played soccer in the U.K.
Examining Attorney’s brief, 6 TTABVUE 5-6; January 22, 2020 Final Office Action,
at TSDR 5-22. June 24, 2019 Office Action at TSDR 27. The record also includes
Frank Lampard’s Wikipedia page and Frank Lampard’s player information and
Serial No. 88411380
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statistics on the Major League Soccer website.2 June 24, 2019 Office Action at TSDR
23-27. The Examining Attorney also points to the Lexis/Nexis public records surname
database that reflects 237 individuals with the name LAMPARD as support that the
surname “is not particularly rare.” Examining Attorney’s brief, 6 TTABVUE 6; June
24, 2019 Office Action at TSDR 2. Additional whitepages database evidence
submitted by the Examining Attorney shows 374 individuals with the surname
LAMPARD. June 24, 2019 Office Action at TSDR 3-8.
Applicant responded to this evidence by arguing that the database evidence of
“approximately 300 individuals” with the surname LAMPARD establishes exactly the
opposite, namely that LAMPARD is “an extremely rare surname.” Applicant’s brief,
4 TTABVUE 2.
Based on the evidence, we find LAMPARD is somewhat rarely used and
encountered as a surname. Both the Lexis/Nexis database (237) and whitepages
listings (374) are not a significant number. See e.g., In re Eximius Coffee, 120 USPQ2d
at 1280 (ALDECOA rarely encountered as a surname; census shows 233 people in the
United States with the name); In re Joint-Stock Co. Baik, 84 USPQ2d 1921, 1922-23
(TTAB 2007) (BAIK is “an extremely rare surname”; superpages database shows 456
people with the name BAIK).
In addition, the record does not support widespread exposure to the public in the
United States of the surname LAMPARD through the media as there is very little

2 Frank Lampard played in the United States in 2015-2016 for the New York team in Major
League Soccer. June 24, 2019 Office Action at TSDR 23-27.
Serial No. 88411380
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evidence of media attention to or publicity of persons having that surname. Although
the Examining Attorney argues that current coach and former soccer player Frank
Lampard, who lives in the United Kingdom but played in the United States in 2015-
2016, has “fame and notoriety,” 6 TTABVUE 6, there is not a sufficient showing that
Frank Lampard is a widely recognized public personality in the United States. We
find this evidence is not sufficient to show widespread and routine exposure of the
surname LAMPARD to the United States public. Cf. In re Eximius Coffee, 120
USPQ2d at 1280-81 (excerpts from various regional newspapers such as the
Washington Post and Detroit Free Press, in which individuals with the surname
ALDECOA were mentioned in relation to sports scores, local events, and their jobs,
“are the type of evidence that can be probative and aid analysis because they show
public exposure to ALDECOA used as a surname.”); In re Gregory, 70 USPQ2d 1792,
1795 (TTAB 2004) (“A surname rarely appearing in birth records may nonetheless
appear more routinely in news reports, articles and the like, so as to be broadly
exposed to the general public.”).
Although we find that LAMPARD is rarely used as a surname, this does not end
the inquiry because Section 2(e)(4) “makes no distinction between rare and
commonplace surnames.” See In re Picone, 221 USPQ 93, 95 (TTAB 1984). Even an
uncommon surname is unregistrable if its primary significance to purchasers is as a
surname. See In re Giger, 78 USPQ2d 1405, 1408 (TTAB 2006) (“[T]he fact that a
term is not a common surname does not mean that a surname would not be
considered to be primarily merely a surname.”).
Serial No. 88411380
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B. Whether LAMPARD is the Surname of Anyone Connected with
Applicant
There is no evidence to indicate that anyone connected with Applicant has the
surname LAMPARD, and Applicant states “that no one connected with the Applicant
has the surname LAMPARD or any literal equivalents.” Applicant’s brief, 4
TTABVUE 4.
The fact that no one associated with the Applicant has the surname LAMPARD
does not tend to establish one way or the other whether the term would be perceived
as a surname. This inquiry is neutral. In re Thermo LabSystems Inc., 85 USPQ2d
1285, 1287 (TTAB 2007); In re Gregory, 70 USPQ2d at 1795.
C. Whether LAMPARD Has Any Recognized Meaning Other Than As a
Surname
To establish that LAMPARD does not have any ordinary language meaning or
geographic meaning, the Examining Attorney relies on negative dictionary and
gazetteer evidence. The search results for the term LAMPARD from the American
Heritage Dictionary, Merriam-Webster Dictionary, and The Columbia Gazetteer of
the World yielded no results. June 24, 2019 Office Action at TSDR 9-14.
Applicant argues that because LAMPARD is a rare surname, the lack of dictionary
evidence does not support the refusal. However, the fact that LAMPARD “may be a
rare surname does not entitle it to treatment different from what would be accorded
to a common surname when no other meaning for the word is shown.” In re E.
Martinoni Co., 189 USPQ 589, 590-91 (TTAB 1975).
Serial No. 88411380
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We find that the evidence that LAMPARD has no other recognized meaning
further supports the Examining Attorney’s position that the primary significance of
LAMPARD is as a surname.
D. Whether Evidence Shows that LAMPARD has the Structure and
Pronunciation of a Surname
Applicant argues LAMPARD does not have the structure and pronunciation of a
surname, while the Examining Attorney argues that the “public would perceive the
structure and sound of the ‘LAMPARD’ surname similarly to that of the surname
‘LAMBERT.’” Applicant’s brief, 4 TTABVUE 5; Examining Attorney’s brief, 6
TTABVUE 8.
The Examining Attorney relies on evidence from the “House of Names” and
surnamedb websites that both indicate LAMPARD is a surname, derived from the
Old French and Old Germanic personal names LAMBERT and LANBERT, with
variant spellings of the surname that include LAMBERT, LAMBARD, LAMBART,
LAMBARTH, LAMPART and LAMPERD. June 24, 2019 Office Action at TSDR 15-
19.
We find that that LAMPARD would be perceived as a surname as it has a similar
structure and pronunciation to related surnames. See In re Industrie Pirelli, 9
USPQ2d 1564, 1566 (TTAB 1988) (primary significance of PIRELLI is a surname,
finding that it was similar in structure to some of the common Italian surnames found
in the American Surnames reference book such as Antonelli, Mancinelli, and Pacelli).
Applicant submitted no evidence to show that that LAMPARD would be perceived by
the public as a fanciful term.
Serial No. 88411380
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Overall, the record contains evidence showing that LAMPARD is an actual
surname and that no other meaning exists. This evidence is corroborated by evidence
that LAMPARD is similar in structure and pronunciation to other related surnames.
Applicant’s unsupported argument that consumers would not perceive the term as a
surname due to is rarity is unconvincing. On this record, the primary significance of
of LAMPARD to the purchasing public is that of a surname.

Decision: The Section 2(e) (4) refusal to register Applicant’s mark LAMPARD is
affirmed.