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 In re Punita Leathers, Inc., Serial No. 85322001 (December 17, 2013) [not precedential].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.
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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.