TTAB Test: Is DEEP SOUTH Geographically Descriptive of Movie Studio Services?
The USPTO refused registration of the mark DEEP SOUTH STUDIOS, in standard character and design form, for "movie studio services," finding the term "DEEP SOUTH" to be primarily geographically descriptive of the services under Section 2(e)(2). Applicant, located in New Orleans, argued that "Deep South" is "amorphous" and is not the mark’s primary significance. How do you think this came out? In re Deep South Studios LLC, Serial Nos. 86896313 and 86896327 (February 9, 2017) [not precedential].
The Board found that the primary significance of "Deep South" is a place generally known to the public. Reference works discuss the Deep South as including Louisiana. The Board presumed that the public would believe that applicant's services emanate from the Deep South because applicant is based in Louisiana. Finally, there was no dispute that applicant's service emanate from the Deep South.
Applicant argued that New Orleans is not part of the Deep South, but the Board found that the evidence relied upon by applicant merely differentiate New Orleans culturally and in other ways from other parts of the Deep South. It did not say that New Orleans is not part of the Deep South.
"The purpose of the proscription in Section 2(e)(2) of the Act against registration of primarily geographically descriptive terms is to leave place names free for all businesses operating in particular areas to inform customers where the goods or services originate. It would be completely inconsistent with the objectives of the Trademark Act" to register DEEP SOUTH for Applicant’s movie studio services rendered in the Deep South unless applicant had claimed and proved that the term has acquired secondary meaning. In re MCO Properties, 38 USPQ2d at 1156.
And so the Board affirmed the refusal of the standard character mark, and affirmed the refusal of the design mark for failure to disclaim DEEP SOUTH and STUDIOS.
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TTABlog comment: How about DEEP! DEEP! SOUTH ?
Text Copyright John L. Welch 2017.