Friday, May 27, 2011

Test Your TTAB Judge-Ability: Is This "HOT SPRINGS NATIONAL PARK ARKANSAS" Logo Primarily Geographically Descriptive?

The National Park Service petitioned for cancellation of a registration for the mark shown below [HOT SPRINGS NATIONAL PARK ARKANSAS disclaimed] for "creating advertising for publications or direct mail advertising; cooperative advertising and marketing; displaying advertisements for others; and dissemination of advertising for others,” on the ground that the mark is primarily geographically descriptive under Section 2(e)(2). Registrant conceded that Hot Springs National Park is a geographically descriptive term, and the addition of Arkansas does not help. But what about this logo form? National Park Service v. Hot Springs Advertising & Promotion Commission, Cancellation No. 92049191 (May 25, 2011) [not precedential].

The issue, said the Board, was "whether the primary significance of the mark, as a whole, is a generally known geographic location." There was no evidence addressing the significance of the design element.

Petitioner relied on In re Save Venice New York Inc., 259 F.3d 1346, 59 USPQ2d 1778 (Fed. Cir. 2001), in which the mark shown below was held to be primarily geographically deceptively misdescriptive, despite the inclusion of a design element.

However, the Board observed, the image of a winged Lion of St. Mark in that case "was recognized as a symbol of the city of Venice, Italy, and thus reinforced the geographic significance of the wording SAVE VENICE and THE VENICE COLLECTION in the mark at issue." Here, "the abstract design has no recognized significance and, as such, does not reinforce the geographically descriptive wording HOT SPRINGS NATIONAL PARK ARKANSAS."

The Board concluded that Petitioner had failed to prove the first element of the Section 2(e)(2) test - that the mark as a whole is the name of a place known to the public - and so it denied the petition for cancellation.

TTAB comment: I enjoy seeing government agencies lose because I think, based on experience, that they have an unfair advantage: a bottomless pocket. They are usually represented by an attorney from, for example, the Department of Justice at effectively no cost.

What about a Section 2(a) false association claim? Petitioner's petition for cancellation (here) is so poorly constructed and badly worded that it's difficult to discern what it claimed originally, but it pursued only the 2(e)(2) claim.

Text Copyright John L. Welch 2011.


At 11:00 AM, Anonymous Anonymous said...

I enjoy seeing government agencies lose ....

Yes, but those are your tax dollars being wasted, unless you are lucky enough to be one of the po' folks who aren't expected to pay taxes.

At 2:39 PM, Blogger Pamela Chestek said...

I don't see how the design changes anything at all - it's a square and a rectangle and a wavy line. It may not REINFORCE that the significance of the mark is Hot Springs National Park, but it surely doesn't do anything to negate the clear geographic reference. I think the standard applied was wrong.

At 6:23 PM, Anonymous Marta R. said...

"Petitioner's petition for cancellation ... is so poorly constructed and badly worded that it's difficult to discern what it claimed originally, but it pursued only the 2(e)(2) claim."

And so, presumably, the Justice Dept. lawyers were worth precisely as much as the National Park Service paid for them. Maybe less.

At 7:52 AM, Blogger John L. Welch said...

They are my tax dollars whether or not the government loses.

At 1:53 PM, Anonymous Anonymous said...

But John, do you want your tax dollars to be wasted on a losing cause?

One can argue, maybe, that the tax dollars are not wasted if they win.


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