Monday, December 23, 2013

Test Your TTAB Judge-Ability: Is ASHBURN Geographically Descriptive of Blankets?

Do you know where Ashburn is? FWIW, I never heard of it. When I hear "Ashburn," I think of Hall of Fame outfielder Richie Ashburn. The PTO refused to register ASHBURN for "bed blankets; blanket throws; lap blankets," finding it to be primarily geographically descriptive under Section 2(e)(2). Applicant Punita Leathers appealed. How do you think this came out? In re Punita Leathers, Inc., Serial No. 85322001 (December 17, 2013) [not precedential].

A mark is primarily geographically descriptive under Section 2(e)(2) when the mark is the name of a place generally known to the public, and the public would make a goods/;ace association, i.e., it would believe that the goods identified in the application originate in that place.

The examining attorney's evidence indicated that Ashburn, Virginia (population ~50,000) is located about 30 miles northwest of Washington, D.C. and 12 miles from Chantilly, Virginia, where Punita Leathers is located. However, there was no evidence that Ashburn has any association with blankets, nor that Chantilly, Virginia, is associated with Ashburn.

Although there was no evidence that ASHBURN "is anything other than a geographical location," [remember Richie Ashburn? - ed.], the question here was "how many people in this country know that?" There was no evidence that a significant number of people are aware of Ashburn, Virginia. Instead, the evidence established that Ashburn is remote and obscure.

Because there was at least a genuine issue regarding the obscurity of Ashburn, Virginia, the examining attorney was required to establish a public association of the goods with the place. Again, the evidence fell short. In fact, as Punita Leathers pointed out, it is not even located in Ashburn.

In a footnote the Board distinguished the instant situation from the Board's YOSEMITE BEER decision, in which a Section 2(e)(2) refusal was affirmed even though applicant was located in Merced, California, some 90 miles from Yosemite National Park, because Merced was touted as the "gateway to Yosemite" and the economy of Merced centered around its association with the national park

And so the Board reversed the refusal to register.

Richie Ashburn

Read comments and post your comment here.

TTABlog note: Well, how did you do? What percentage of trademark attorneys, do you think, know who Richie Ashburn is?

Text Copyright John L. Welch 2013.


At 9:05 AM, Anonymous Anonymous said...

No way this would have been refused if the PTO wasn't in same general region as Ashburn.

At 9:39 AM, Anonymous Anonymous said...

Ashburn is known as the training camp of the folks who used to be called the Washington Redskins, but who are so ashamed of that name that they now just call themselves the Redskins.

At 10:18 AM, Anonymous Anonymous said...

"And so the Board affirmed the refusal to register." -- I think you meant to say "REVERSED the refusal."

The term is not obscure to me because I live in Ashburn, VA which is a relatively new and fairly affluent Virginia suburb of DC, virtually next to Dulles International Airport. I also am aware of at least 3 other TM attorneys who live in my large subdivision there. That's probably why the examiner did not think the place was "obscure."

But I expected the Board to conclude that ASHBURN is obscure because I suspected that the examiner would not find any significant evidence showing that people outside the DC area are familiar with Ashburn or that Ashburn has any reputation for commercial activity related to the goods identified in the application.

At 10:46 AM, Blogger John L. Welch said...

Sorry about the error. The refusal was reversed. Too many margaritas, I think.

At 2:44 PM, Anonymous Anonymous said...

i know about richie ashburn because i watched him and harry kalas broadcast phillies games as a kid but i never watched him as a player

At 10:30 PM, Anonymous Clifford D. Hyra said...

This is the same Examining Attorney who refused BLUE RIDGE on the basis of geographic descriptiveness and had that decision reversed about six months ago (same client). I guess if you want to use geographic marks, pick ones that are not near the PTO.

Hopefully the Trademark Office will be more receptive to such applications going forward, because it really is unfair for an applicant to have to wait a year and pay for briefing in a case like this.


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