Leiper’s Fork Distillery, LLC

Trademark Trial and Appeal Board

May 14, 2018

No. 86894726 (T.T.A.B. May. 14, 2018)

This Opinion is not a
Precedent of the TTAB

Mailed: May 14, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Leiper’s Fork Distillery, LLC
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Serial No. 86894726

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Ryan J. Letson of Maynard Cooper & Gale PC,
for Leiper’s Fork Distillery, LLC.

Kelly Trusilo, Trademark Examining Attorney, Law Office 107,
J. Leslie Bishop, Managing Attorney.
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Before Zervas, Ritchie, and Kuczma,
Administrative Trademark Judges.

Opinion by Ritchie, Administrative Trademark Judge:
Leiper’s Fork Distillery, LLC (“Applicant”) seeks registration on the Principal
Register of the mark LEIPER’S FORK DISTILLERY, in standard character form, for
“insulating sleeve holders for beverage cans,” in International Class 21; “baseball
caps and hats; clothing, namely, shirts; sweatshirt; t-shirts,” in International Class
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25; and “alcoholic beverages except beers; blended spirits; bourbon; distilled spirits;
whiskey,” in International Class 33.1
The Examining Attorney refused registration of Applicant’s mark under Section
2(e)(2) of the Trademark Act, 15 U.S.C. § 1052(e)(2), on the ground that the applied-
for mark is primarily geographically descriptive of the origin of Applicant’s goods.
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Trademark Examining Attorney denied the Request for
Reconsideration, the appeal was resumed. The appeal is now fully briefed. For the
reasons discussed below, we affirm the refusal to register.
I. Primarily Geographically Descriptive
The elements of a Section 2(e)(2) geographically descriptive claim are as follows:
(1) the primary significance of the mark is a generally known geographic
location;
(2) the source of the goods is the geographic region named in the mark;
and
(3) purchasers would be likely to believe the goods or services 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); citing In re Societe Generale des Eaux Minerales de Vittel S.A., 824 F.2d 957, 3
USPQ2d 1450, 1452 (Fed. Cir. 1987).

1 Serial No. 86894726, was filed on February 2, 2016, pursuant to Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), alleging a bona fide intent to use the mark in all classes,
and disclaiming the exclusive right to use the term “DISTILLERY” as to Class 33.
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A. Primary Significance
With regard to the first prong, the Examining Attorney submitted evidence that
Leiper’s Fork is a location in Williamson County, Tennessee.
Wikipedia: Leiper’s Fork, Tennessee: Leiper’s Fork is an unincorporated
rural village in Williamson County, Tennessee. It has a population of
about 650 on an area of about 1,100 acres (450 ha). The village, located
on the Natchez Trace Parkway, is listed on the National Register of
Historic Places as a historic district.
En.wikipedia.org. Attached to May 24, 2016 Office Action, at 2.

The Examining Attorney also submitted negative dictionary evidence to show
that there is no other meaning of the term Leiper’s Fork, other than as a village in
Tennessee.2 (Attached to January 19, 2017 Final Office Action at 25, 28). Applicant
does not dispute this.
Applicant argues, however, that Leiper’s Fork is “an obscure location which, even
if members of the general public were aware existed, would not have led them to
believe Applicant’s Goods originate there.” 15 TTABVUE 7. In this regard, Applicant
cites Newbridge Cutlery, 113 USPQ2d at 1449, in which the Federal Circuit, our
primary reviewing court, noted that where “the geographic meaning of a location is
‘minor, obscure [or] remote,’ [cites omitted]” that “indicates that the location is not
generally known.” As Applicant acknowledges, the court went on to note, however,
that “[o]f course, there are many probative factors to the question of whether a
location is generally known.” Id.

2 “Negative” dictionary evidence has been defined as “evidence showing that the dictionaries
searched do not have an entry for the term.” In re Olin Corp., 124 USPQ2d 1327, 1332 (TTAB
2017).
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In this case, while Leiper’s Fork may have a small population, it has a large draw.
Internet evidence submitted by the Examining Attorney indicates that Leiper’s Fork
is a tourist destination of growing popularity in Williamson County; it is listed on the
National Historic Registry with the National Park Service; and that well known
musicians and artists sometimes come from nearby Nashville to take part in the
village’s cultural scene. TripAdvisor refers to it as “#7 of 59 things to do in Franklin,”
January 19, 2017 Final Office Action, at 8, and reviews include comments like “Must
see” and “My favorite Sunday place.” Id. at 10, 11. Another website refers to Leiper’s
Fork as Williamson County’s “hidden gem.” January 19, 2017 Final Office Action, at
17. And, several other websites refer to the vibrant culture of the town. January 19,
2017 Final Office Action, at 34, 40, 57. National mentions of the local culture and
businesses of Leiper’s Fork have been included in such publications as USA Today
and Harper’s Bazaar, which listed the Moonshine Hill Inn located in Leiper’s Fork as
a “Top 10 B&B/Inn In the Country.” September 13, 2017 Denial of Request for
Reconsideration, at 163. Apparently, the allure of Leiper’s Fork has been noticed by
others as well, as indicated in the following excerpt:
Country Living: You’ll Never Believe Which Celebrity Might Be Moving
to Leiper’s Fork: He just bought more than 100 acres of land in the small
Tennessee community. July 7, 2015: When we heard that one big-time
celebrity just made a major purchase in Leiper’s Fork, Tennessee, we
admit, we weren’t expecting this: Singer and actor Justin Timberlake
recently paid a hefty $4 million for 126.63 acres of land in the small
Southern community.
Countryliving.com; January 19, 2017 Final Office Action, at 43.

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Overall, we find that this case is distinguishable from Newbridge Cutlery. There
is no dispute that Leiper’s Fork has no other meaning than to refer to the village in
Tennessee. While it may be a small town or village, Leiper’s Fork has built up a
reputation that is not remote or obscure. Of course, Applicant’s mark is LEIPER’S
FORK DISTILLERY. Applicant has disclaimed the term “DISTILLERY” as to its
Class 33 goods, which include “alcoholic beverages except beers; blended spirits;
bourbon; distilled spirits; whiskey.” The addition of the descriptive or generic term
“DISTILLERY” does not alter the applicability of the refusal. See In re JT
Tobacconists, 59 USPQ2d 1080 (TTAB 2001) (MINNESOTA CIGAR COMPANY held
primarily geographically descriptive of cigars); In re Carolina Apparel, 48 USPQ2d
1542, 1543 (TTAB 1998) (CAROLINA APPAREL primarily geographically
descriptive of retail clothing store services).
Thus, we find that the primary significance of LEIPER’S FORK DISTILLERY is
a generally known geographic location.
B. Origin of the Goods
Next, we consider whether the goods originate from the location. Applicant does
not dispute that it is located in Franklin, Tennessee, which neighbors Leiper’s Fork,
as noted in its address of record. As such, we have found that (1) Leiper’s Fork is a
generally known location; (2) that the term’s primary significance is the village of
Leiper’s Fork, and (3) the goods do originate from this location. See In re Spirits of
New Merced, LLC, 85 USPQ2d 1614, 1621 (TTAB 2007) (YOSEMITE BEER held
geographically descriptive of beer produced and sold in a brewpub in Merced,
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California, the Board stating that “[s]ince the goods originate at or near [Yosemite
National Park], we can presume an association of applicant’s beer with the park.”).
Thus, we find that the goods originate from this location.
C. Goods/Place Association
In considering whether there is a goods/place association, we note that where the first
two prongs of the test have been satisfied, the third may be presumed. See In re
Cheezwhse.com, Inc., 85 USPQ2d 1917, 1920 (TTAB 2008); see also Trademark
Manual of Examination Procedure (TMEP) § 1210.04 (October 2017).3
Moreover, Applicant also does not dispute that Tennessee is generally known for
its whiskey and distilled spirits.4 Applicant included a Wikipedia entry noting that
“Tennessee whiskey is one of the top ten exports of Tennessee.” July 19, 2017 Request
for Reconsideration, at 72, and another website noting “Tennessee whiskey, defined
by state law and bound by a rigid distilling process, remains one of the state’s top
exports and is increasing its overall market share.” Id. at 81.5 Popular, well-known
brands include Jack Daniels and George Dickel. Id. at 72.

3 In Newbridge Cutlery, the Federal Circuit noted that “This presumption may well be proper,
but, as this case can be decide on other grounds, we do not address its propriety and leave it
for another day.” In re Newbridge Cutlery Co., 113 USPQ2d at 1449.
4 A place within a greater region known for particular goods may also be known for such
goods. See Corporacion Habanos S.A. v. Guantanamera Cigars Co., 102 USPQ2d 1085, 1100
(TTAB 2012) (where Cuba is well-known for cigars and cigar tobacco is produced in
Guantanamo, Cuba, “we need not require evidence that Guantanamo itself is famous or
otherwise known in the United States for cigars or cigar tobacco.”).
5 See also January 19, 2017 Final Office Action, at 67-76. It was not necessary for Applicant
to resubmit all of the evidence already submitted by the Examining Attorney. It was already
of record for reference by either the Examining Attorney or Applicant.
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One website regarding applicant indicates:
Leiper’s Fork Distillery aims to revive the history and heritage of small
batch whiskey production in Williamson County, which was once known
for its moonshine.
January 19, 2017 Final Office Action, at 40-41. [See also July 19, 2017
Request for Reconsideration, at 46].

Applicant’s own website similarly states:

It is our aim to resurrect the lost history and heritage of small batch
whiskey production in Williamson County. . . . To that end, Leiper’s Fork
Distillery is creating high end premium whiskeys using local ingredients
and pure limestone filtered water, resulting in superior whiskeys with
a signature taste.
September 13, 2017, Denial of Request for Reconsideration, at 80-81.

These websites indicate that there is a history of whiskey production in
Williamson County, in which Leiper’s Fork Distillery lies, as noted by Applicant itself.
We find that there is a goods/place association.
D. Other Arguments by Applicant
Applicant argues that its application should be allowed in any regard since (1)
there are third-party registrations on the Principal Register that were approved for
“various geographic locations together with the term ‘distillery;’” and (2) Applicant
has two other applications with the term Leiper’s Fork. 15 TTABVUE 21.
Regarding Applicant’s co-pending applications, Applicant filed Application No.
86894770 for , and Application No. 86894747 for . Both
identify the same goods as in the present application. Both, however, disclaim the
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exclusive right to the term “LEIPER’S FORK.” Thus, if anything, they are evidence
that Applicant has previously disclaimed the term.
As for the third party registrations cited by Applicant, these include the
following,6 all for alcohol or related goods and services: NEW WORLD DISTILLERY
(Registration No. 5220000, and disclaiming DISTILLERY); GLENDALOUGH
DISTILLERY, and design (Registration No. 5216501, and disclaiming
GLENDALOUGH DISTILLERY); CLEAR CREEK DISTILLERY ORE USA, and
design (Registration No. 5150006 and disclaiming DISTILLERY and “ORE USA”);
KILIMANJARO DISTILLERY (Registration No. 5161703, and disclaiming
DISTILLERY); DUMPLIN’ CREEK DISTILLERY (Registration No. 5110242, and
disclaiming DISTILLERY); and GOLD RIVER DISTILLERY (Registration No.
4954240, and disclaiming DISTILLERY).
As pointed out by the Examining Attorney, despite the evidence submitted by
Applicant, we do not have the full files of these registrations, and we cannot
determine that they are primarily merely geographically descriptive. Furthermore,
we are not bound by prior registrations. See In re Cordua Rests., Inc., 823 F.3d 594,
118 USPQ2d 1632, 1635 (Fed. Cir. 2016) (“The PTO is required to examine all
trademark applications for compliance with each and every eligibility requirement .
. . .”); In re Shinnecock Smoke Shop, 571 F.3d 1171, 91 USPQ2d 1218, 1221 (Fed. Cir.
2009) (“Even if all of the third-party registrations should have been refused
registration . . . , such errors do not bind the USPTO to improperly register

6 Attached to July 19, 2017 Request for Reconsideration, at 99-109.
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Applicant’s marks.”) (citation omitted); In re Nett Designs, Inc., 236 F.3d 1339, 57
USPQ2d 1564, 1566 (Fed. Cir. 2001) (“Even if some prior registrations had some
characteristics similar to Nett Designs’ application, the PTO’s allowance of such prior
registrations does not bind the Board or this court.”).
The Examining Attorney, meanwhile, submitted numerous third-party
registrations7 for marks having a geographic term followed by “DISTILLERY” for
alcohol or related goods and services, and registered on the Supplemental Register.
These include8: DOOR COUNTY DISTILLERY (Registration No. 4340127, and
disclaiming DISTILLERY); DINGLE DISTILLERY, Registration No. 4736842, and
disclaiming DISTILLERY); COOPERSTOWN DISTILLERY (Registration No.
5287997, and disclaiming DISTILLERY); ROCK TOWN DISTILLERY (Registration
No. 4437760, and disclaiming DISTILLERY); OZARK DISTILLERY (Registration
No. 4527263, and disclaiming DISTILLERY); ST AUGUSTINE DISTILLERY CO.,
and design (Registration No. 4693600, and disclaiming DISTILLERY CO.);
CANNERY ROW DISTILLERY (Registration No. 4683027, and disclaiming
DISTILLERY); APPALACHIAN GAP DISTILLERY (Registration No. 4915541, and
disclaiming DISTILLERY); LITCHFIELD DISTILLERY (Registration No. 4990570,
and disclaiming DISTILLERY); NAPA VALLEY CRAFT DISTILLERY, Registration
No. 4943408 and disclaiming CRAFT DISTILLERY); DAYTON DISTILLERY
(Registration No. 5014961, and disclaiming DISTILLERY); BOSTON HARBOR

7 Which is not to say that we find these third-party registrations any more persuasive than
those submitted by Applicant.
8 Attached to September 13, 2017 Denial of Request for Reconsideration, at 11-46.
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DISTILLERY (Registration No. 5130763, and disclaiming DISTILLERY); and LOS
ANGELES DISTILLERY (Registration No. 5258044, and disclaiming DISTILLERY).
Thus, we find Applicant’s arguments to be unavailing.
E. Request for Remand to Supplemental Register
In its brief, Applicant included a request, in the alternative, that in the event the
refusal is affirmed, that the application be remanded for registration on the
Supplemental Register. 15 TTABVUE 23. There are a few problems with this request.
First, a request for remand should not be buried in a brief. Second, Applicant has not
submitted a statement of use in this application. Third, a request for remand to
consider an amendment, such as this, will be considered “upon a showing of good
cause.” Trademark Trial and Appeal Board Manual of Procedure (TBMP) § 1205.01
(June 2017). However, considering the late point at which Applicant filed the request,
the alternative nature of the request, and the fact that Applicant has not yet filed a
Statement of Use, the request is denied.
F. Conclusion
We find the primary significance of LEIPER’S FORK DISTILLERY to be Leiper’s
Fork, Tennessee, a geographical location that is generally known to the relevant
United States consumers, and which has no other meaning. Because the origin of the
goods is in the vicinity of Leiper’s Fork, Tennessee, we find that the relevant
consumers are likely to make a goods/place association. This is especially so, due to
the renown of Tennessee whiskey, and the association of whiskey with Tennessee,
and indeed, Applicant’s own reference to the historical past of whiskey in Williamson
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County where Leiper’s Fork is located. In view thereof, LEIPER’S FORK
DISTILLERY is primarily merely geographically descriptive of the goods in the
application under Section 2(e)(2) of the Trademark Act.
Decision: The Section 2(e)(2) refusal to register Applicant’s mark is affirmed.