On November 26, 2018, the Federal Circuit held that surnames that have acquired distinctiveness may be registered as a trademark. Schlafly v. St. Louis Brewery, LLC, No. 2017-1468 (Fed. Cir. Nov. 26, 2018). The Saint Louis Brewery has been selling beer with the SCHLAFLY logo since 1991 and applied for trademark registration in 2011 for use with various types of beer. The application was opposed by relatives with the same surnames. TTAB denied the opposition finding acquired distinctness of the mark by relying on the long continuous use of the mark, the geographic scope of use of the mark, the variety of products with the mark in commerce, the prominent placement of the mark on SLB's products, the large sales volume of SCHLAFLY beer, the marketing types and expenditures of SLB, total revenue for SCHLAFLY marked products, SLB's ranking among craft brewers in the U.S., awards won by SCHLAFLY beer, and media and other reports on SCHLAFLY beer products. The opposers of the mark argued that SLB failed to submit consumer surveys as evidence of secondary meaning.
In affirming the TTAB, the Federal Circuit ruled that surnames may be registered as trademark upon showing of acquired distinctiveness and that distinctiveness may be shown by both direct and circumstantial evidence. Because the Board found that the SCHLAFLY mark for beers had acquired secondary meaning, there is no bar to registration.
Full text of the opinion is available here.
In affirming the TTAB, the Federal Circuit ruled that surnames may be registered as trademark upon showing of acquired distinctiveness and that distinctiveness may be shown by both direct and circumstantial evidence. Because the Board found that the SCHLAFLY mark for beers had acquired secondary meaning, there is no bar to registration.
Full text of the opinion is available here.
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