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 In re Whalehead Brewery, LLC, Application Serial No. 90741753 (July 28, 2023) [not precedential] (Opinion by Judge Frances S. Wolfson).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.

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

Text Copyright John L. Welch 2023.