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Earnhardt v. Kerry Earnhardt, Inc.

This case arises from Kerry Earnhardt, Inc.’s (KEI) trademark application with the U.S. Patent and Trademark Office (PTO) to register the mark EARNHARDT COLLECTION for “furniture” in class 20 and “custom construction of homes” in class 37. Teresa Earnhardt opposed registration based on an asserted likelihood of confusion with her registered marks in DALE EARNHARDT for goods and services in various classes and her common law rights in EARNHARDT and DALE EARNHARDT acquired by use with various goods and services. She also opposed registration because in her view EARNHARDT COLLECTION is “primarily merely a surname” under Section 2(e)(4) of the Lanham Act. 15 U.S.C. § 1052(e)(4) (2012). The Trademark Trial and Appeal Board (Board) dismissed Teresa Earnhardt’s opposition because it found that there was no likelihood of confusion between EARNHARDT COLLECTION and Teresa Earnhardt’s marks, and it found that EARNHARDT COLLECTION is not primarily merely a surname. J.A. 38. Teresa Earnhardt appeals the Board’s finding that EARNHARDT COLLECTION is not primarily merely a surname. Because it is unclear whether the Board’s analysis properly applied our decision in In re Hutchinson Technology Inc., 852 F.2d 552, 554 (Fed. Cir. 1988), we vacate and remand for reconsideration.

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