Friday, August 18, 2006

Citable No. 40: TTAB Finds "BALASHI" Not Primarily Geographically Descriptive of Beer

In its 40th citable decision of 2006, the Board reversed Section 2(e)(2) refusals to register the marks BALASHI BEER ["BEER" disclaimed] and BALASHI, finding the marks to be not primarily geographically descriptive of beer. In re Brouwerij Nacional Balashi NV, 80 USPQ2d 1820 (TTAB 2006).

The key issue was whether the place named "Balashi" is so obscure or remote that the ordinary American purchaser would fail to recognize the term as indicating the geographical source of the goods. The PTO argued that BALASHI is an area of Aruba that has "historical significance because of its importance in the gold industry," and currently is "home to the world's second largest desalination plant." Therefore, the Examining Attorney asserted, the term BALASHI "identifies a significant geographic location in Aruba." Moreover, she contended that Aruba is an important travel destination for American tourists, that Balashi is often mentioned in travel information about Aruba, and that Americans would know that Balashi is the source of the name for BALASHI beer.

Applicant urged that the geographical significance of BALASHI is minor, obscure, or remote: it is a small and commercially insignificant neighborhood in the district of Santa Cruz with no boundaries and no official status, no hotels, government offices, post offices, churches or schools, and only a single restaurant. Applicant submitted 14 maps which fail to show "Balashi" as a geographic place.

The Board found Applicant's evidence persuasive. Even though Applicant's beer comes from Balashi, a goods/place association cannot be presumed because Balashi is so remote and obscure. Therefore the PTO was required to present "evidence sufficient to establish that American consumers of beer would in fact make such an association." The PTO failed to do so.

As Judge Hohein summarized:

"... the average American beer consumer, after perhaps quaffing a few 'brews' while spending some time lying around on, or at least contemplating a vacation to, the white sand beaches of Aruba that serve as the island's principal tourist destinations, might have occasion to research and/or check out whatever other attractions, including gold mine ruins, a large desalination plant and applicant's brewery, would be of interest as a side trip to the locale of Balashi. The geographical significance, however, of the term 'Balashi' would not be apparent without, at a minimum, consulting sources of tourism information."

Therefore, the Board reversed the refusals to register.

Text Copyright John L. Welch 2006.


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