Wednesday, May 16, 2018

TTAB Affirms Geographical Descriptiveness Refusal of LEIPER'S FORK DISTILLERY for Clothing

The Board affirmed a Section 2(e)(2) refusal of the mark LEIPER'S FORK DISTILLERY for "insulating sleeve holders for beverage cans," various clothing items, and alcoholic beverages, finding the mark to be primarily geographically descriptive of the goods. Applicant argued, without success, that Leiper's Fork is "an obscure location which, even if the public were aware existed, would not have led them to believe Applicant's Goods originate there." In re Leiper’s Fork Distillery, LLC, Serial No. 86894726 (May 14, 2018) [not precedential] (Opinion by Judge Lorelei Ritchie).

Leiper's Fork, a rural village in Tennessee with a population of 650, is listed on the National Register of Historic Places. Negative dictionary evidence showed no other meaning of Leiper's Fork.

A Section 2(e)(2) refusal is appropriate when:

(1) the primary significance of the mark is a generally known geographic location:

(2) the source of the goods is the geographic location named in the mark; and

(3) purchasers would be likely to believe the goods or services originate in the geographic place identified in the mark.

Primary Significance: The Board noted that, although Leiper's Fork has a small population, "it has a large draw." Leiper's Fork is a tourist destination of growing popularity. Well known musicians and artists come from Nashville to take part in the village's cultural scene. Justin Timberlake recently paid $4 million for a tract of land there. In short, "Leiper's Fork has built up a reputation that is not remote or obscure."

Leiper's Fork Distillery

Origin of the Goods:: Applicant did not dispute that it is located in Franklin, Tennessee, which neighbors Leiper's Fork. Close enough, said the Board, finding that the goods therefore originate from Leiper's Fork for Section 2(e)(2) purposes. See In re Spirits of New Merced, 85 USPQ2d 1614 (TTAB 2007) (YOSEMITE  BEER held geographically descriptive of beer sold in Merced, California, near Yosemite National Park).

Goods/Place Association: When the first two prongs of the Section 2(e)(2) test are met, the third may be presumed. In any case, applicant did not dispute that Tennessee is generally known for its whiskey and distilled spirits. Moreover, there is a history of whiskey production in Williamson County, where Leiper's Fork is located.

Conclusion: The Board affirmed the refusal.

Read comments and post your comment here.

TTABlog comment: Next time I'm in Tennessee, I'll check it out.

Text Copyright John L. Welch 2018.


At 7:00 AM, Anonymous Anonymous said...

you mean 2e2, not 2d.

Likelihood of confusion on the brain

At 7:34 AM, Blogger John L. Welch said...

Sad, but true. Fixed it.

At 8:02 AM, Anonymous Anonymous said...

I hope the applicant appeals to the CAFC. The Board's attempt to distinguish the CAFC's decision in Newbridge Cutlery is strained to say the least. The fact that Justin Timberlake may have purchased land in Leiper's Fork does not mean it's a place "generally known" to American purchasers of spirits and clothing, unless you believe such purchasers keep track of celebrities' land purchases. It's hard for me to see how this decision is faithful to Newbridge Cutlery, in which the CAFC wrote:

"The Board concluded that Newbridge, Ireland, is a place known generally to the public because it is (1) the second largest town in County Kildare and the seventeenth largest in the Republic of Ireland; (2) it is listed in the Colombia Gazetteer of the World; and (3) it appears on a number of websites including Wikipedia and tourism websites that advertise the location as “a large commercial town” with a “silverware visitor centre” in addition to museums, gardens, historical and battle sites, and a famous horse racing track.

"( . . . )

"The conclusion that Newbridge, Ireland, a town of less than twenty thousand people, is a place known generally to the relevant American public is not supported by substantial evidence. That Newbridge is the second largest town in County Kildare and the seventeenth largest in the Republic of Ireland reveals nothing about what the relevant American purchaser might perceive the word “Newbridge” to mean and is too insignificant to show that Newbridge is a place known generally to the American purchasing public. Similarly, while the Board relied on the Colombia Gazetteer of the World listing, what is missing is any evidence to show the extent to which the relevant American consumer would be familiar with the locations in this gazetteer.

"Likewise, the fact that Newbridge, Ireland, is mentioned on some internet websites does not show that it is a generally known location. The internet (and websites such as Wikipedia) contains enormous amounts of information: some of it is generally known, and some of it is not. There is simply no evidence that the relevant American consumer would have any meaningful knowledge of all the locations mentioned in the websites cited by the PTO.

"Further, it is simply untenable that any information available on the internet should be considered known to the relevant public. The fact that potential purchasers have enormous amounts of information instantly available through the internet does not evidence the extent to which consumers of certain goods or services in the United States might use this information to discern the primary significance of any particular term."

In re Newbridge Cutlery Co., 113 U.S.P.Q.2d 1445, 1449-50 (Fed. Cir. 2015).

At 8:14 AM, Blogger John L. Welch said...

Ireland ain't Tennessee

At 8:19 AM, Anonymous Anonymous said...

John, Newbridge Cutlery isn't about the country/state in which the geographic place is located, but about an approach to evaluating Internet evidence.

At 10:33 AM, Blogger John L. Welch said...

country/state is certainly a factor. But I get the point. Why don't you write a guest blog post and I'll publish it?

At 10:47 AM, Blogger Mike said...

So with reference to the Laromana decision (yesterday's blog entry), the applicant should have insisted that the goods did not actually originate in Leiper's Fork, that the name was therefore geographically misdescriptive, but the origination in Leiper's Fork would not be material to purchasers of whiskey?


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