*1 IN RE GALE HAYMAN, INC.
Serial No. 721,237
March 26, 1990
Grimes & Battersby for applicant
Trademark Examining Attorney
Law Office 7
(David Shallant, Acting Managing Attorney)
Before Rice, Cissel and Quinn
Opinion by Quinn
An application has been filed by Gale Hayman, Inc. to register the mark SUNSET BOULEVARD for cosmetics, namely perfume and cologne. [FN1]
Registration has been finally refused on the ground that under Section 2(e) (2), applicant's mark, when applied to its goods, is primarily geographically descriptive of them. Applicant has appealed the final refusal. [FN2] Both the Examining Attorney and applicant have filed briefs. [FN3] No oral hearing was requested.
The Examining Attorney argues that the primary significance of SUNSET BOULEVARD is geographic and that "applicant's principal offices are located in the area named by the mark"' (Examining Attorney's brief, p.10). In support of his refusal to register, the Examining Attorney submitted copies of five excerpts from the Los Angeles Times which he obtained through the use of the NEXIS library of Mead Data Central's LEXIS information retrieval system. The evidence has been submitted to show, in the Examining Attorney's words, "that Sunset Boulevard is neither remote nor obscure, it being a leading commercial avenue in Los Angeles"' (Examining Attorney's brief, p.10).
Applicant, on the other hand, contends that SUNSET BOULEVARD is not primarily geographically descriptive, arguing, in essence, that a goods/place association is not the primary meaning that its mark connotes.
In order for registration to be properly refused under Section 2(e)(2), it is necessary to show that the mark sought to be registered is the name of a place known generally to the public, and that the public would make a goods/place association, that is, believe that the goods for which the mark is sought to be registered originate in that place. See: In re California Pizza Kitchen Inc., 10 USPQ 1704 (TTAB 1988), citing In re Societe General des Eaux Minerals de Vittel S.A., 824 F.2d 957, 3 U.S.P.Q.2d 1450 (Fed. Cir. 1987). Where there is no genuine issue that the geographical significance of a term is its primary significance and where the geographical place is neither obscure nor remote, a public association of the goods with the place may ordinarily be presumed from the fact that the applicant's own goods come from the geographical place named in the mark. In re Handler Fenton Westerns, Inc., 214 USPQ 848 (TTAB 1982). A geographically descriptive term can indicate any geographic location on earth, including streets and areas of cities. See: J. McCarthy, Trademarks and Unfair Competition Section 14.2A (2d ed. 1984).
Applicant admits that Sunset Boulevard is "a leading avenue in the Los Angeles area"' (Applicant's response dated August 1, 1988, p.5). We have no doubt that this thoroughfare is known generally to the public and is neither remote nor obscure. We do not believe, however, that the public would make a goods/place association. The mere fact that applicant's principal offices are in Century City, close to Sunset Boulevard, does not mandate a finding that a goods/place association should be presumed. [FN4] Sunset Boulevard itself would have to be associated with the products in such a way that the consuming public would be likely to assume that Sunset Boulevard was the place in which the perfume and cologne originated. Nothing in the record, however, indicates or even suggests that purchasers would believe that Sunset Boulevard was the place of manufacture or production of the perfume and cologne. Indeed, there is no indication that any perfume or cologne is manufactured or produced on Sunset Boulevard. See: In re Jacques Bernier, Inc., ---- F.2d ----, 13 U.S.P.Q.2d 1725 (Fed. Cir. 1990) [RODEO DRIVE not primarily geographically deceptively misdescriptive when applied to applicant's perfume]. Nor is there any evidence that applicant's goods are even sold on Sunset Boulevard.
*2 Decision: The refusal to register under Section 2(e)(2) is reversed.
J. E. Rice
R. F. Cissel
T. J. Quinn
Members, Trademark Trial and Appeal Board
FN1. Application Serial No. 721,237, filed April 8, 1988, alleging dates of first use of March 17, 1988.
FN2. Registration also was finally refused under Section 2(d) on the ground of likelihood of confusion with a prior registration. A review of the record shows that Registration No. 1,343,736, cited by the Examining Attorney as a Section 2(d) bar to registration of applicant's mark, was cancelled by the Commissioner's order dated March 14, 1990 as a result of the petition for cancellation granted on March 5, 1990 in Cancellation No. 18,279. The appeal with respect to the final refusal under Section 2(d) is, therefore, dismissed as involving a moot question.
FN3. Applicant, on February 26, 1990, filed a supplemental reply brief. The Trademark Rules do not provide for such briefs and, moreover, the brief is manifestly untimely. Accordingly, the brief has not been considered. The Board is aware, however, of the recent events pointed to by applicant, as shown in our decision herein.
FN4. The Examining Attorney's evidence merely shows that a hotel, restaurant, fashion salon and electronic billboard are located on Sunset Boulevard.