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What is Section 2(e)(4) Refusal - Primarily Merely a Surname?

Senior Trademark Attorney

A Section 2(e)(4) refusal is issued when the USPTO determines the applied-for mark is primarily merely a surname; that consumers would perceive it first and foremost as a family name rather than as a brand identifier.

The refusal is based on the idea that surnames should remain available for use by all people who share that name. A mark that is primarily merely a surname cannot be registered on the Principal Register without proof that it has acquired a secondary meaning as a brand.

The key word is "primarily." If the term has a well-established non-surname meaning (as a common word, a historical figure's name, or a coined term), that can be argued. Evidence that the surname is rare, that it has strong non-surname associations in the relevant trade, or that the applied-for mark includes other distinctive elements can support a response.

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