Tuesday, July 24, 2007

"ROMANTIC ROAD" 2(e)(2) Cancellation Proceeding Hits Dead End: Summary Judgment to Registrant

In a dubious decision granting Respondent's motion for summary judgment, the Board dismissed a petition for cancellation of a registration for the mark ROMANTIC ROAD for tourism promotion services in class 35, finding the mark not to be primarily geographically descriptive under Section 2(e)(2). Petitioner Robert A. Scheder, who operates the website www.romanticroad.com, claimed that the phrase "Romantic Road" describes a particular region in Southern Germany (see map), but the Board found that Scheder failed to overcome Registrant's prima facie case that ROMANTIC ROAD functions primarily as a mark. Scheder v. Touristik Arbeitsgemeinschaft Romantische Strabe GbR, Cancellation No. 92045257 (June 19, 2007) [not precedential].

Registrant's evidence established that the term ROMANTIC ROAD was coined in 1950 by a group of tourist boards in Germany, who formed a joint venture to offer travel services and promote tourism in the American-occupied portion of Southern Germany. Since then, additional cities have jointed the venture, and the term has been promoted extensively, including via a recently-added website. Registrant did not dispute that ROMANTIC ROAD "has come to identify a specific geographic region, and that its goods originate from there." It argued, however, that the primary significance of ROMANTIC ROAD is as a mark.

Petitioner Scheder offered maps, road signs, websites, internet search results and documents, all "purporting to show that ROMANTIC ROAD identifies a physical location."

The Board found that ROMANTIC ROAD, in use for 50 years, "has become a known travel destination. Thus, Registrant has set out a prima facie case that ROMANTIC ROAD functions primarily as a mark."

"... the undisputed fact that the mark ROMANTIC ROAD is well known, and that people may be familiar with the tourism area comprising the ROMANTIC ROAD, establishes that it functions primarily as a mark, because it is through Registrant's efforts that the name given by Registrant and its predecessors to the region has come to recognized as a source of tourism-related services, albeit in a particular location."

Finding no genuine issue of material fact, the Board granted Registrant's summary judgment motion.

TTABlog comment: How does one say "baloney" in German? I think, at a minimum, there was a genuine and crucial issue of fact as to how the public primarily perceives the term ROMANTIC ROAD. Registrant put in evidence of creation and use, but so what? Where is the evidence of the public's perception of the mark? Didn't Petitioner at least counterbalance Registrant's evidence by showing uses of ROMANTIC ROAD that did not refer to Registrant's tourism services?

I believe that, when Americans hear the term ROMANTIC ROAD, they think either of their local "lover's lane" or they think of the tourist area in Southern Germany. Does anyone believe that they think of tourism services?

Text Copyright John L. Welch 2007.


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