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Author Topic: Marks which are Geographically Descriptive and Combined With Additional Matter  (Read 982 times)

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Offline advJitu

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If a composite mark comprises a geographic term that is primarily geographically descriptive of the goods or services under 2(e)(2), and the mark as a whole would be likely to be perceived as indicating the geographic origin of the goods or services, then the examining attorney must consider: (1) whether the geographic term is a separable element in the mark; and (2) the nature of the additional matter that makes up the composite mark.

If the geographic term is not a separable element or if none of the additional matter that makes up the composite mark is inherently distinctive (e.g., it is merely descriptive or incapable), then the examining attorney must refuse registration of the entire mark on the Principal Register pursuant to 2(e)(2).

If the geographic term is a separable element and the additional matter making up the mark is inherently distinctive as applied to the goods or services (i.e., coined, arbitrary, fanciful, or suggestive), the applicant may either: (1) register the mark on the Principal Register with a disclaimer of the geographic term; or (2) establish that the geographic term has acquired distinctiveness under 2(f).

A disclaimer is appropriate where the geographic component is a separable feature of the mark, and the composite mark includes an inherently distinctive, non-disclaimed component (e.g., coined, arbitrary, fanciful, or suggestive wording or design). The composite mark must include a non-disclaimed component because a mark cannot be registered if all the components have been disclaimed. See TMEP 1213-1213.11 regarding disclaimer.

When the examining attorney requires a disclaimer of primarily geographically descriptive matter, the applicant may seek to overcome the disclaimer requirement by submitting a showing that the geographic term has become distinctive under 2(f). See TMEP 1210.07(b) and 1212.02(f) regarding 2(f) claims as to a portion of the mark.

A term that is primarily geographically descriptive of the goods or services under 2(e)(2) may be registered on the Supplemental Register in an application under 1 or 44 of the Trademark Act, if it is not barred by other section(s) of the Act. See TMEP 1210.07(a).

To help ensure that determinations concerning the primary significance of composite marks are handled consistently, examining attorneys must consult their senior or managing attorney before going forward when they have made a preliminary determination that the primary significance of the mark as a whole is not geographic. The senior or managing attorney will make the final determination or may seek guidance from the Office of Legal Policy regarding such marks.
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