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WHALEHEAD Not Primarily Geographically Descriptive

Posted by James Juo | Aug 04, 2023 | 0 Comments

A trademark is primarily geographically descriptive when: (1) the mark is the name of a place known generally to the public; (2) the goods for which applicant seeks registration originate in the geographic place identified in the mark; and (3) purchasers would be likely to believe that the goods originate in the geographic place identified in the mark. See In re Newbridge Cutlery Co., 776 F.3d 854, 113 USPQ2d 1445, 1448–49 (Fed. Cir. 2015); In re Societe Generale des Eaux Minerales de Vittel S.A., 824 F.2d 957, 3 USPQ2d 1450, 1452 (Fed. Cir. 1987); In re Broken Arrow Beef and Provision, LLC, 129 USPQ2d 1431, 1432 (TTAB 2019); In re Hollywood Lawyers Online, 110 USPQ2d 1852, 1853 (TTAB 2014).

Whalehead in Corolla, North Carolina

Recently, there was an appeal for the WHALEHEAD BREWERY trademark for beer which had been refused for geographic descriptiveness because the applicant is located in Corolla, North Carolina, and Whalehead Beach is located in Corolla. In re Whalehead Brewery, LLC, Ser. No. 90741753 (TTAB July 28, 2023).

While it may be presumed that the goods originate in Corolla and are sold at Whalehead Beach, the TTAB found that it was not a place well known generally to the relevant public.

“Whalehead Beach” is the name of a strip of beachfront property in North Carolina that boasts several rental properties in its 12-block area. There is a mansion, or former hunt club, that at least one general tourism website, the Currituck County's Welcome Center, describes simply as “Whalehead”; other sites name the mansion the “Whalehead Club.” No industry, restaurants, breweries (other than Applicant's, which is located in nearby Corolla) have been shown to exist in or surrounding Whalehead Beach or the Whalehead Club, but nearby wildlife habitats and a lighthouse also attract annual visitors to the beach area.

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Further, “Whalehead” identifies both a beachfront and a specific building, refers to at least one other geographic location in the U.S., is used to refer to a type of sand dune and is the name of a wading bird. In addition, consumers unfamiliar with any of these meanings may attach to the term “whalehead” a zoological connotation referring to the head of a whale. See, e.g., Broken Arrow, 129 USPQ2d at 1444 (finding more than 50 different websites, articles, search results, and social media pages in which the letters BA were used to abbreviate Broken Arrow, Oklahoma, inadequate to show the “threshold element of geographic descriptiveness” had been met); Newbridge, 113 USPQ2d at 1451 (finding that Newbridge, Ireland, is not generally known to the relevant public “by the fact that certain maps and atlases do not include it” and by the fact that Newbridge “has other meanings, both geographical and non-geographical”).

The TTAB also found that advertisements directed to purchasers of real estate property or vacation rental homes were not related to the relevant purchasing public for beer.

Thus, the TTAB held that the term WHALEHEAD was not primarily geographically descriptive.

Thomas P. Howard, LLC is experienced in trademarks nationwide including in Colorado.

About the Author

James Juo

James Juo is an experienced intellectual property attorney. He has successfully litigated various intellectual property disputes involving patents, trademarks, copyrights, and trade secrets. He also has counseled clients on the scope and validity of patent and trademark rights.


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