unregistrable under Trademark Act § 2(e)(3), whether the goods are identified as cigars, tobacco, andcigarettes or cigars made from Cuban seed tobacco, Cuban seed tobacco, and cigarettes made fromCuban seed tobacco. Therefore, the following actions are instituted:The refusal to register the mark under Trademark Act § 2(e)(2) has been withdrawn.Registration is refused because the applied-for mark consists of or includes geographically deceptiveand primarily geographically deceptively misdescriptive matter in relation to the identified goods.Trademark Act Sections 2(a) and 2(e)(3), 15 U.S.C. §1052(a), (e)(3);
see In re Les Halles De Paris J.V.
,334 F.3d 1371, 67 USPQ2d 1539 (Fed. Cir. 2003);
In re Cal. Innovations Inc.
, 329 F.3d 1334, 66USPQ2d 1853 (Fed. Cir. 2003),
In re Budge Mfg. Co.
, 857 F.2d 773, 8 USPQ2d 1259 (Fed. Cir. 1988);TMEP §§1210, 1210.01(b)-(c).A mark is geographically deceptive and primarily geographically deceptively misdescriptive if thefollowing is shown:(1) The primary significance of the mark is a generally known geographic place orlocation;(2) The goods for which applicant seeks registration do not originate in thegeographic place identified in the mark;(3) Purchasers would be likely to make a goods-place association; that is, purchaserswould be likely to believe that the goods originate in the geographic place identified inthe mark; and(4) The misrepresentation regarding the geographic origin of the goods is material tothe purchaser’s decision to buy the goods in question.
In re Les Halles De Paris J.V.
, 334 F.3d 1371, 1373, 67 USPQ2d 1539, 1541 (Fed. Cir. 2003);
In reCal. Innovations Inc.
, 329 F.3d 1334, 1341, 66 USPQ2d 1853, 1859 (Fed. Cir. 2003); TMEP§1210.01(b)-(c).Although applicant’s mark has been refused registration, applicant may respond to the refusal bysubmitting evidence and arguments in support of registration.The amendment to the recitation of goods submitted March 9, 2009, in which the reference to Cubanseed tobacco was deleted, has been accepted.Applicant submitted March 9, 2009, information that Kuba refers to an extinct kingdom located inAfrica in Zaire, now the Democratic Republic of the Congo. Applicant asserts that its mark wouldengender an impression of the culture of the Kuban Kingdom, rather than Cuba, so that its mark wouldnot be geographically misdescriptive of Cuba. Applicant’s assertion is unpersuasive. The primarysignificance to the purchasing public of a mark is to be considered under the test to determine whether amark is primarily geographically deceptively misdescriptive. An applicant’s desire that its mark engender another meaning beyond that of its primary meaning in relation to the goods it identifies, sothat its primary meaning is obscured, has little bearing upon the issue. See:
In re South Park Cigar Inc.
,82 USPQ2d 1507 (TTAB, 2007). Because the word “Kuba” has a meaning other than the wordCuba,does not detract from the primary impression of the word as that of an island in the Caribbean. “Kuba”is a misspelled version of the geographical word “Cuba” and as used as a source indicator for tobaccoproducts is unregistrable. /David C. Reihner/, Examining AttorneyLaw Office 111, 571-272-9392571-273-9111 fax.
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