Wednesday, August 02, 2023

TTABlog Test: Is "WHALEHEAD BREWERY" Primarily Geographically Descriptive of Beer?

The USPTO refused to register the proposed mark WHALEHEAD BREWERY, finding the mark to be primarily geographically descriptive of beer. The examining attorney maintained that "this wording references a beach area in Corolla, North Carolina,” and the term WHALEHEAD "is well known to the purchasing public as evidenced by its 'Outer Banks icon' status." Applicant contended that "when considered beyond local usage, the term ‘Whalehead’ loses any geographic meaningfulness and becomes obscure to the relevant public." How do you think this appeal came out? In re Whalehead Brewery, LLC, Application Serial No. 90741753 (July 28, 2023) [not precedential] (Opinion by Judge Frances S. Wolfson).

In order to refuse registration on the ground that a mark is primarily geographically descriptive, the USPTO must show (1) that the mark is the name of a place that is generally known to the public, (2) that the public would make a goods/place association in that it would believe that the involved goods originate in that place, and (3) that the involved goods come from that place.

The second and third prongs of the test were satisfied because applicant is located in Corolla, North Carolina, and because Whalehead Beach is located in Corolla. It may therefore be presumed that the goods originate in Corolla and are sold at Whalehead Beach. The Board may also presume that purchasers will make a “goods-place” association. 

As to the first prong, the Board found that:

“Whalehead Beach” is the name of a strip of beachfront property in North Carolina that boasts several rental properties in its 12-block area. There is a mansion, or former hunt club, that at least one general tourism website, the Currituck County’s Welcome Center, describes simply as “Whalehead”; other sites name the mansion the “Whalehead Club.” No industry, restaurants, breweries (other than Applicant’s, which is located in nearby Corolla) have been shown to exist in or surrounding Whalehead Beach or the Whalehead Club, but nearby wildlife habitats and a lighthouse also attract annual visitors to the beach area.

The Board agreed with applicant that just because Internet property listings and tourist websites refer to WHALEHEAD as a beach community in North Carolina does not prove that WHALEHEAD is "the name of an area that is well known to the general purchasing public."

The advertisements submitted by the Examining Attorney are directed to purchasers of real estate property or vacation rental homes and not to consumers of beer. Further, “Whalehead” identifies both a beachfront and a specific building, refers to at least one other geographic location in the U.S., is used to refer to a type of sand dune and is the name of a wading bird. In addition, consumers unfamiliar with any of these meanings may attach to the term “whalehead” a zoological connotation referring to the head of a whale.

In sum, the evidence failed to support a finding that the term WHALEHEAD is generally known as a geographic location. And so, the Board reversed the refusal to register.

Read comments and post your comment here.

TTABlogger comment: Looks just like First Encounter Beach. Do you know where that is?

Text Copyright John L. Welch 2023.

4 Comments:

At 12:14 PM, Blogger TMAttorneyHeller said...

Got it right!!!

 
At 3:29 PM, Blogger Sean Heneghan said...

First Encounter is in Eastham on Cape Cod and its claim to fame being the place where a scouting party from the folks on the Mayflower who initially landed in where Provincetown is now 'encountered' members of the Nauset peoples while camping at the beach. It's also known to our family to be loaded with green heads in August BUT one of the Herring River channels next to the beach is an excellent water ride during the turning of the tide.

 
At 4:00 PM, Blogger John L. Welch said...

I think the green heads show up a bit earlier than August, at least in my experience, which is substantial, since I live quite close by. The channel you refer to, which fills First Encounter Marsh when the tide is in, is called the "Bee River" by some. I also think the Beach is more known for its sunsets (it's a north-south beach) over Plymouth Bay. Great family beach: when the tide is out, there are lots of pools of water for the kids to explore.

 
At 4:10 PM, Blogger Sean Heneghan said...

You're probably right about the green heads John! We're 'north' nearer Cook's Brook during summers so don't get 'down' to First Encounter as much, now that the kids aren't kids anymore and the 'lazy river' attraction has lost its appeal to the ocean side, great whites be damned!

 

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