Delta Faucet Company

Trademark Trial and Appeal Board

Oct 14, 2021

88813356 (T.T.A.B. Oct. 14, 2021)

This Opinion is Not a
Precedent of the TTAB

Mailed: October 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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Application Serial No. 88813356
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Edgar A. Zarins of Masco Corporation
for Delta Faucet Company
William T. Verhosek, Trademark Examining Attorney, Law Office 114,
Laurie Kaufman, Managing Attorney.
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Before Shaw, Coggins, and Dunn,
Administrative Trademark Judges.

Opinion by Dunn, Administrative Trademark Judge:
Delta Faucet Company (Applicant) seeks registration on the Principal Register of
the mark CORNWELL for “Plumbing products, namely, faucets, showerheads and
toilets,” in International Class 11.1

1 Application Serial No. 88813356 was filed February 27, 2020, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide
intention to use the mark in commerce.
The Trademark Status and Document Retrieval (TSDR) citations refer to the downloadable
.pdf version of the documents available from the electronic file database for the involved
application. The TTABVUE citations refer to the Board’s electronic docket, with the first
number referring to the docket entry and the second, if applicable, to the page within the
entry.
Application Serial No. 88813356
- 2 -

The Trademark Examining Attorney refused registration under Section 2(e)(4) of
the Trademark Act, 15 U.S.C. § 1052(e)(4), on the ground that the mark CORNWELL,
as applied to the goods identified in the application, 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. LEGAL STANDARD FOR SURNAME REFUSAL
Section 2(e)(4) of the Trademark Act, 15 U.S.C. § 1052(e)(4), precludes registration
of a mark on the Principal Register that is “primarily merely a surname,” without a
showing of acquired distinctiveness under Section 2(f) of the Act, 15 U.S.C. 1052(f).2
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., 864 F.3d 1374,
123 USPQ2d 1411, 1413 (Fed. Cir. 2017); In re Hutchinson Tech. Inc., 852 F.2d 552,
7 USPQ2d 1490, 1492 (Fed. Cir. 1988); In re Weiss Watch Co., Inc., 123 USPQ2d 1200,
1201 (TTAB 2017).
The U.S. Court of Appeals for the Federal Circuit has long held that, in
determining whether the purchasing public would perceive a proposed 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;

2 The application is based on an allegation of a bona fide intent to use the mark, and Applicant
has not claimed or argued that its proposed mark CORNWELL has acquired distinctiveness.
Application Serial No. 88813356
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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). These
considerations are not exclusive and any of these circumstances singly or in
combination, and any other relevant circumstances, may be relevant in a particular
case. Id. There is “no hard and fast rule as to the amount of evidence necessary to
demonstrate that a mark is or is not primarily merely a surname.” In re Standard
Elektrik Lorenz A.G., 371 F.2d 870, 152 USPQ 563, 566 (CCPA 1967). Accord In re
Eximius Coffee, LLC, 120 USPQ2d 1276, 1278 (TTAB 2016).
II. ANALYSIS
The record establishes that the term CORNWELL is a surname. In the first Office
action, the Examining Attorney states “Please see the attached representative
sample of evidence from Lexis/Nexis®, establishing the surname significance of
CORNWELL. This evidence shows the word CORNWELL in the applied-for mark
appearing 22,426 times as a surname in the LEXISNEXIS® surname database, which
is a weekly updated directory of cell phone and other phone numbers (such as voice
over IP) from various data providers.”3 The Board regularly accepts search results
from the Lexis/Nexis surname database as evidence that a term is primarily merely
a surname. See In re tapio GmbH, 2020 USPQ2d 11387, *9 (TTAB 2020) (“In support
of the surname refusal, the Examining Attorney cites evidence from the LexisNexis®
public record surname database”); In re Colors in Optics, Ltd., 2020 USPQ2d 53784
*1 n.4 (TTAB 2020) (Examining Attorney relied on showing that Hutton appeared

3 April 16, 2020 Office Action TSDR 4-8 (representative sample of 100).
Application Serial No. 88813356
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“26,379 times as a surname in the LEXIS ADVANCED® surname database.”); In re
Olin Corp., 124 USPQ2d 1327, 1331 (TTAB 2017) (“Evidence introduced by the
Examining Attorney includes … [a] LexisNexis public records search for the surname
‘Olin’ that returned 7,552 results. The first 500 results were made of record and span
numerous states.”). The record also includes an excerpt from a third-party website
demonstrating that CORNWELL QUALITY TOOLS identifies a family-owned
business in Ohio, founded in 1919 by Eugene Cornwell.4
In addition, the record includes negative evidence, i.e. evidence showing that
general reference materials do not include a non-surname meaning for a term. The
record includes pages from the Columbia Gazetteer and the Macmillan Dictionary
which show that the term CORNWELL does not appear as an entry.5 See In re
Etablissements Darty et Fils, 225 USPQ at 653 (“[W]here no common word meaning
can be shown, a more difficult question must be answered concerning whether the
mark presented for registration would be perceived as a surname or as an arbitrary
term.”); In re Adlon Brand GmbH & Co. KG, 120 USPQ2d 1717, 1719 (TTAB 2016)
(“To show that ADLON has no other apparent meaning, she has submitted ‘negative
dictionary’ evidence, that is, evidence showing that the term ADLON cannot be found
in the dictionaries … and the result of an electronic ‘place name’ search of THE
COLUMBIA GAZETTEER OF THE WORLD, showing that ADLON does not appear
therein.”); In re Eximius Coffee, LLC, 120 USPQ2d at 1278 (“The evidence that

4 October 22, 2020 Response TSDR 4-5.
5 April 16, 2020 Office Action TSDR 9-12.
Application Serial No. 88813356
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ALDECOA has no other recognized meaning further supports the Examining
Attorney’s case that its primary significance is as a surname.”). We find that the
significant evidence that CORNWELL is a surname, the surname use of CORNWELL
in connection with a longstanding business, and the absence of any nonsurname
meaning for CORNWELL, demonstrate that the purchasing public would perceive
CORNWELL as primarily merely a surname.
Applicant’s arguments that this evidence is not probative, and that the term
CORNWELL is fanciful as applied to Applicant’s goods, do not persuade us. Applicant
contends that the surname is rare, but the record evidence shows more than 26000
uses of CORNWELL as a surname, so it is not rare.6 See In re Eximius Coffee, 120
USPQ2d at 1280 (233 people with surname ALDECOA); In re Adlon Brand, 120
USPQ2d at 1720 (75 individuals with surname ADLON); In re Giger, 78 USPQ2d
1405, 1407 (TTAB 2006) (545 individuals with surname Giger). While it is true, as
Applicant contends, that the absence of nonsurname meaning alone will not support
a surname refusal, the negative evidence in this case does not stand alone, but
corroborates the evidence of significant surname use.7 Compare In re Garan Inc., 3
USPQ2d 1537, 1539 (TTAB 1987) (“That there are no other meanings of the name in
the English language will not support refusal of registration of the surname under
the ‘primarily merely a surname’ statutory language unless the average member of

6 4 TTABVUE 2.
7 4 TTABVUE 3.
Application Serial No. 88813356
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the purchasing public would, upon seeing it used as a trademark, recognize it as a
surname.”).
Applicant’s argument that “the Examining Attorney has overlooked that Cornwell
Tools have become one of the most widely recognized handtools, certainly in North
America. Consumers are likely to recognize the term as a fanciful mark rather than
make any association with a family name”8 lacks any nexus between the assertions
that the CORNWELL QUALITY TOOLS business is well known and that consumers
would find CORNWELL fanciful. In fact, the excerpt from the CORNWELL
QUALITY TOOLS website touts the family name, and in connection with Applicant’s
contention that the business is “widely recognized,” we find that the evidence
corroborates, and does not rebut, the other evidence that CORNWELL is a surname.
See In re Piano Factory Grp., Inc., 85 USPQ2d 1522, 1524 (TTAB 2006) (surname
refusal of VOSE supported by “an excerpt from the website of ‘Michael Sweeney Piano
Craftsman,’ which contains the statement that ‘The Vose & Sons Piano Company was
established in 1851, manufacturing pianos for over a century and a half’”).
After consideration of all the arguments and evidence presented, we find that the
primary significance of CORNWELL is as a surname, and the proposed mark
CORNWELL is primarily merely a surname.
III. DECISION
The refusal to register Applicant’s proposed mark CORNWELL under Section
2(e)(4) of the Act is affirmed.

8 Id.