Friday, October 23, 2015

TTAB Finds CAROLINA'S SUMMER HUMMER Geographically Descriptive of Alcoholic Beverages

The Board affirmed a Section 2(e)(2) refusal of the mark CAROLINA'S SUMMER HUMMER, finding the mark primarily geographically descriptive of "alcoholic beverages, namely, distilled liquors and distilled spirits." Applicant contended that the SUMMER HUMMER portion of the mark is inherently distinctive, and therefore the mark is registrable on the Principal Register [with a disclaimer of CAROLINA?]. The Board disagreed, resulting in a SUMMER HUMMER BUMMER that dampened B&B Spirits. In re B & B Spirits, LLC, Serial No. 86081482 (October 21, 2015) [not precedential].

The taste test under Section 2(e)(2) has two prongs: (1) the primary significance of the mark is a generally known geographic place, and (2) the relevant public would likely believe that the goods came from that place. If the goods in fact come from the location named, a goods/place association may be presumed.

Prong 1: The Board found that "Carolina" is a well-known geographic abbreviation for two states. [Can you name them? - ed.]. A nickname or informal name for a place is the equivalent of the formal name for purposes of Section 2(e)(2). [Like Birthplace of Franklin for ... Guess what?] Use of the possessive form enhances the geographic meaning. Applicant did not dispute that Carolina is a geographic location.

Applicant contended that the term SUMMER HUMMER is inherently distinctive, and so its mark may be registered on the Principal Register. It asserted that "hummer" has a variety of meanings: one that hums, a hummingbird, a humdinger, or a fastball. When used for alcoholic beverages, said applicant, SUMMER HUMMER alludes to "a striking or extraordinary summer that results from the product, great summer memories, a great product for summer, a liquor that hits you as hard as a fastball, and so on."

The evidence submitted by Examining Attorney Andrea Koyner Nadelman, however, demonstrated that "summer hummer" is highly descriptive for applicant's goods. Various websites provide recipes for a "summer hummer" cocktail. Accordingly, some of the items in applicant's identification of goods may be "summer hummer ingredients." Therefore the presence of the term SUMMER HUMMER in the applied-for mark does not distract from the geographical significance of the mark as a whole.

Prong 2: Applicant is located in Monks Corner, South Carolina. Moreover, at least some of the goods will be sold in South Carolina. [so what? - ed.]. Therefore, because "Carolina" is a "generally known" place, a goods/place association is presumed. [Maybe Applicant B&B should try NEWBRIDGE SUMMER HUMMER - ed.].

And so the Board affirmed the Section 2(e)(2) refusal.

Read comments and post your comment here.

TTABlog comment: In the NEWBRIDGE CUTLERY case, the CAFC ruled that the USPTO had failed to satisfy the first prong of the applicable test: that the place named by the mark [Newbridge, Ireland] be generally known to the relevant consuming public. TTABlogged here.

Text Copyright John L. Welch 2015.


At 8:10 AM, Blogger Brad Salai said...

You are in rare form, marvelous!!

At 9:48 AM, Anonymous Anonymous said...

Isn't Carolina the name of the woman whose picture is on the label? Doesn't show that use of Carolina is not primarily geographic?

At 11:12 AM, Anonymous Gabriella Ripoll said...

I thought that the requirement was that the place be well known as a source of the goods in the application (such that consumers might find it descriptive of the goods for source purposes), not just that the place is well-known among consumers. Also, given that one of the Newbridge factors was that Newbridge could be more than one place and not just the Irish town, doesn't the fact that "Carolina" could be either North or South Carolina (or a woman's name, as Anon at 9:48 said) hew against geographic descriptiveness?

I suppose the problem was that applicant is actually in one of the Carolinas (and, from reading the opinion, seems to have basically conceded the geographic issue in favor of arguing the SUMMER HUMMER issue), causing the presumption of descriptiveness to kick in. It seems like the TTAB, from its opinion, might have been persuadable on the Carolina issue. A pity, because it would have been interesting to see that developed more.


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