United States: Precedential No. 3: TTAB Reverses Section 2(E)(2) Geographical Descriptiveness Refusal Of BA BEEF For Beef

Last Updated: March 4 2019
Article by John L. Welch

The Board reversed a Section 2(e)(2) refusal to register the mark BA BEEF for "beef; flavored nuts; frozen fish; pork; poultry; preserved fish; processed pecans; seasoned nuts; chicken" [BEEF disclaimed], finding that the USPTO had failed to prove that the mark is primarily geographically descriptive of the goods. The examining attorney contended that "BA" is an abbreviation for Broken Arrow, Oklahoma, where applicant is located, but the record evidence was insufficient to show that "BA" would be recognized as identifying "a place known generally to the beef-purchasing public in the United States." In re Broken Arrow Beef and Provision, LLC, Serial No. 87334198 (February 23, 2019) [precedential] (Opinion by Judge Christopher Larkin).

Section 2(e)(2) of the Trademark Act bars registration on the Principal Register of a mark which "when used on or in connection with the goods of the applicant is primarily geographically descriptive of them." To establish that a mark is primarily geographically descriptive, the USPTO must prove three elements: "(1) the mark sought to be registered is the name of a place known generally to the public, (2) the public would make a goods/place association, i.e., believe that the goods for which the mark is sought to be registered originate in that place, [and] (3) the source of the goods is the geographic region named in the mark." In re Newbridge Cutlery Co., 776 F.3d 854, 113 USPQ2d 1445, 1448-49 (Fed. Cir. 2015) (internal quotations and citations omitted).

The Board found it necessary to consider only the first element of the Section 2(e)(3) test. The examining attorney relied on websites, search results, social media pages, and various printed materials as proof that the acronym "BA" is an abbreviation for "Broken Arrow" and that the primary significance of "BA" is a generally known geographic location.

Applicant argued that the average American beef consumer "would not likely associate the initials BA with any geographic location." Although local residents sometimes refer to Broken Arrow as "BA," applicant asserted, a beef consumer elsewhere in the country would not know what "BA" meant: "it might be Buenos Aries beef, Big Al's beef, Best Anywhere beer, British Airways beef, Bay Area beef, of simply BA (pronounced 'bah' of 'bay') beef."

The Board found instructive its decision in In re Trans Cont'l Records, 62 USPQ2d 1541 (TTAB 2002), in which the Board reversed a requirement for disclaimer of the word O-TOWN, a nickname for Orlando, Florida. There, despite evidence of use of the nickname in national media, the Board found that, "[a]lthough people in Orlando and parts of Florida may be aware of the nickname," it could not find that "consumers elsewhere in the country are aware that O-TOWN is another name for the city of Orlando." The Board concluded that "the limited number of articles reflecting that O-TOWN is a nickname for Orlando is not sufficient for us to conclude that O-TOWN is anything but an obscure geographic term."

Here, applicant's evidence regarding the meaning of "BA" was "quantitatively more extensive" than that for O-TOWN, but was "no better qualitatively." Website searches showed that "BA" has "a handful of geographic meanings, but most are obscure, and none pertain to Broken Arrow, Oklahoma." Unlike O-TOWN, which refers on its face to a geographic place, "the letters 'BA' have no obvious, generally known geographic significance, much less as an abbreviation for Broken Arrow, Oklahoma."

The examining attorney submitted evidence of use of the letters "BA" as an abbreviation for Broken Arrow in online references to a wide variety of businesses, schools, churches and media, all located in and around Broken Arrow, including in newspaper articles in THE DAILY OKLAHOMAN, TULSA WORLD, BROKEN ARROW WORLD, THE CHRISTIAN SCIENCE MONITOR, and the DALLAS MORNING NEWS, and on the city's governmental website.

The Board found it "hardly surprising" that "most locals" refer to Broken Arrow as "BA." The Board has previously found that it is common for cities to be referred to by nicknames or abbreviations: e.g., THE ATL, and CUBA L.A.). The relevant issue, however, is not whether "locals" recognize "BA" as an abbreviation for Broken Arrow, but "whether beef consumers throughout the entire United States would understand that 'BA' in the mark relates to a geographic place."

Here, Applicant's goods are directed to the general public, not just to consumers in Broken Arrow, Oklahoma. Even assuming that "'BA' is likely a well-known geographic term to the more than 1 million people in the Tulsa metropolitan area," as the Examining Attorney claims, . . . and that the articles in the non-Oklahoma publications have exposed the abbreviation BA to some beef consumers outside Oklahoma, we cannot find, based on the entire record, that the letters BA in the applied-for mark BA BEEF identify "a place known generally to the relevant American public." Newbridge Cutlery, 113 USPQ2d at 1450.

The Board agreed with applicant that "BA" "is no NYC, LA, or even ATL," particularly in view of the multiple non-geographic meanings of "BA." In sum, based on the record evidence, "BA" is "'a relatively obscure term which would not be perceived as a geographic reference to' Broken Arrow, Oklahoma by beef consumers outside Broken Arrow."( quoting Trans Cont'l Records, 62 USPQ2d at 1544.)

And so, because the UPSTO did not establish the "threshold element" of geographic descriptiveness, the Board did not, and was not required to, consider the other elements of the Section 2(e)(2) test. Newbridge Cutlery, 113 USPQ2d at 1451; Trans Cont'l Records, 62 USPQ2d at 1544.

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