TTAB Test: Is EAST END Geographically Descriptive Of A Houston Applicant's Alcoholic Beverages?

Author:Mr John L. Welch
Profession:Wolf, Greenfield & Sacks, P.C.

The USPTO refused registration of EAST END for "Alcoholic beverages, except beers, ales, stouts, ciders and wines; alcoholic beverages, namely, distilled spirits, vodka," finding the mark to be primarily geographically descriptive under Section 2(e)(2). The examining attorney relied on a variety of evidence indicating that "East End, Houston" is a district in Houston, Texas, and on applicant's website stating that applicant is located in Houston's East End.How do you think this came out? In re Buffalo Bayou Distilleries, LLC, Serial No. 86583137 (July 30, 2018) [not precedential] (Opinion by Judge Cynthia C. Lynch).

To establish that a term is primarily geographically descriptive and therefore barred by Section 2(e)(2), the USPTO must show that:

the primary significance of the term is the name of a place generally known to the public. the source of the goods is the place named in the mark. the public would make an association between the goods and the place by believing that the goods originate there. When the goods do emanate from the place named, a goods/place association may be presumed. The CAFC in Newbridge Cutlery [TTABlogged here] clarified that refusals under Section 2(d) applies "only to those marks for which the geographical meaning is perceived by the relevant public as the primary meaning and ... the geographical significance of the mark is to be assessed as it is used on or in connection with the goods."

The Board found that EAST END "clearly has geographical significance, but ... the inquiry under Section 2(e)(2) is more involved."

Applicant Buffalo Bayou argued that every town has an East end and each consumer would understand the mark EAST END as referring to the East end of his or her own town. BB submitted a list of the first ten Google brand search results for "east end usa," the first four entries being: East End, U.S. Virgin Islands East End Historic District (Newburgh, New York); East End, Arkansas; and East End (Long Island). The ninth entry referred to the district in Houston. The examining attorney submitted search results for "east end and texas" and found references to Houston's East End.The Board...

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