Precedential No. 3: TTABlog Test: Is "J HUTTON" Primarily Merely a Surname for Eyewear?

The USPTO refused registration of the proposed mark J HUTTON for "Eyewear, eyewear frames and sunglasses," finding the mark to be primarily merely a surname under Section 2(e)(4). Applicant Colors in Optics argued that the mark is not a surname but rather a reference to a specific individual due to the inclusion of the initial "J" in the mark. How do you think this appeal came out? In re Colors in Optics, Ltd., Serial No. 87558653 (February 7, 2020) [precedential] (Opinion by Deputy Chief Judge Mark A. Thurmon).

Applicant did not challenge the evidence submitted by Examining Attorney Susan Stiglitz that HUTTON is used as a surname in the United States, and it admitted that Hutton is the surname of a person associated with Applicant, Jade Hutton. In fact, Applicant submitted a consent to the use of her name in the mark. However, applicant pointed to third-party registrations for various registered marks consisting of surnames preceded by one or more initials,