Tuesday, July 22, 2008

"CHINATOWN BRASSERIE" Not Primarily Geographically Deceptively Misdescriptive for Restaurant Not in NYC's Chinatown, Says TTAB

Reversing a Section 2(e)(3) refusal to register, the Board found the mark CHINATOWN BRASSERIE & Design [BRASSERIE disclaimed] not primarily geographically deceptively misdescriptive for restaurant services, even though Applicant's restaurant is located one-half mile outside of New York City's Chinatown. The Board ruled that, in a trademark sense, the primary significance of the mark "is not that of a generally known location." In re Lafayette Street Partners, LLC, Serial No. 78678314 (July 9, 2008) [not precedential].

The PTO argued that CHINATOWN is a defined neighborhood in New York City, that Applicant is not located in Chinatown, that Chinatown is known for its restaurants and cuisine, and that the location of a restaurant would be material to a consumer's choice of the restaurant.

Applicant argued that the primary meaning of CHINATOWN is not geographic but rather only suggests a style of Chinese cuisine.

The Board found that Chinatown, "which is only one-half mile from applicant's restaurant, is a continually-expanding neighborhood." More importantly, "Chinese restaurants located in the CHINATOWN in Manhattan, and for that matter in any other CHINATOWN, are not associated with a particular food, like steaks, or a style of quality of cuisine that would distinguish them from Chinese restaurants in places not identified as CHINATOWN."

Moreover, the incongruity of combining CHINATOWN with BRASSERIE "lends further support" to the Board's conclusion that "the primary significance of the mark is not that of a generally known geographic location" for Section 2(e)(3) purposes.

In addition, there is no possible services-place association here. "[W]e fail to see how someone dining in a restaurant ½ mile away would connect the services in applicant's restaurant in a meaningful way with the services offered in CHINATOWN, however that is defined."

"We have no evidence that the CHINATOWN in Lower Manhattan, nor any other one, is associated with a distinct type of style of Chinese cuisine. Neither the quality, nor the authenticity, nor any other feature of the restaurant services offered within the 'borders' of CHINATOWN would necessarily differ in a meaningful way from the same services offered ½ mile away at another restaurant featuring Chinese cuisine. While a tourist may be confused about the location of the restaurant and/or the nuances of the neighborhood borders, this is not relevant to any services-place association delineated in Les Halles."

Finally, since there is no services-place association, there can be no material effect on the purchasing decision.

And so the Board reversed the refusal to register.

TTABlog comment: So there you have it. Some poor sap who thinks he's in Chinatown because he's eating at the CHINATOWN BRASSERIE is actually not in Chinatown at all. Is he being deceived? I think so. Is it a Section 2(e)(3) violation? No, says the Board. And I don't disagree. But what do you say to that poor sap who just wrote a postcard home to his sweetheart in Champaign-Urbana, Illinois, bragging that he ate lunch in Chinatown? Maybe, "Get a map, you hick!"

Text Copyright John L. Welch 2008.


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