Addressing the Trademark Trial and Appeal Board (TTAB) finding
that EARNHARDT was not primarily merely a surname, the US Court of
Appeals for the Federal Circuit remanded the case to the TTAB to
clarify its surname analysis. Teresa H. Earnhardt v. Kerry
Earnhardt, Inc., Case No. 16-1939 (Fed. Cir., July 27, 2017)
(Chen, J).
Kerry Earnhardt, son of the late professional racecar driver
Dale Earnhardt, is co-founder and CEO of Kerry Earnhardt, Inc.
(KEI). KEI applied to register the mark EARNHARDT COLLECTION in
Class 20 for "furniture" and in Class 37 for "custom
construction of homes." Kerry Earnhardt's step-mother (and
Dale Earnhardt's widow), Teresa Earnhardt, opposed the
application, arguing that the applied-for mark would result in a
likelihood of confusion with her registered and common-law DALE
EARNHARDT marks used in connection with a variety of goods and
services. Teresa Earnhardt further argued that EARNHARDT COLLECTION
was primarily merely a surname under §
