Montussan Aperitifs SAS

Trademark Trial and Appeal Board

Aug 12, 2015

No. 86172886 (T.T.A.B. Aug. 12, 2015)

This Opinion is not a
Precedent of the TTAB

Mailed: August 12, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Montussan Apertifs SAS
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Serial No. 86172886
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Michael J. Leonard of Fox Rothschild LLP for Montussan Apertifs SAS.

John Hwang, Trademark Examining Attorney, Law Office 114 (K. Margaret Le,
Managing Attorney).
_______

Before Cataldo, Ritchie and Masiello,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

Applicant, Montussan Apertifs SAS, filed an application to register on the
Principal Register the mark MONTUSSAN (in standard characters) for “alcoholic
beverages containing fruit; alcoholic cocktail mixes; alcoholic cordials; aperitifs;
hard cider; liqueurs; prepared alcoholic cocktail; spirits; wines and fortified wines”
in International Class 33.1

1 Application Serial No. 86172886 was filed January 23, 2014 under Section 44(e) of the
Trademark Act, asserting Registration No. 012057188, issued on January 6, 2014 by the
European (EU) Office for Harmonization in the Internal Market (OHIM).
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The Trademark Examining Attorney refused registration under Section 2(e)(2) of
the Trademark Act, 15 U.S.C. §1052(e)(2), on the basis that Applicant’s mark is
primarily geographically descriptive of its goods.
When the refusal was made final, Applicant filed a request for reconsideration
and appealed the final refusal. The Examining Attorney denied the request for
reconsideration. The refusal has been fully briefed by Applicant and the Examining
Attorney.
Evidentiary Matter
Applicant attached nearly 40 pages of exhibits to its appeal brief. The
Examining Attorney, while objecting to these submissions as untimely, also
submitted nearly 50 pages of exhibits to his brief.
The record in the application should be complete prior to
the filing of an appeal. The Trademark Trial and Appeal
Board will ordinarily not consider additional evidence
filed with the Board by the appellant or by the examiner
after the appeal is filed.
Trademark Rule 2.141(d); 37 C.F.R. §2.141(d). Any of the evidence attached to
either of the appeal briefs that was not previously submitted is untimely and we
give it no consideration.2 See, e.g., In re Fiat Marketing & Corporate
Communications S.p.A., 109 USPQ2d 1593, 1596 (TTAB 2014). See also TBMP
§1203.02(e) (2015) and authorities cited therein.

2 We further observe that any of the evidence attached to the appeal briefs that was
previously submitted is duplicative and unnecessary. See In re Sela Products, LLC, 107
USPQ2d 1580, 1584 (TTAB 2013). See also TBMP §1203.01 (2015) and authorities cited
therein.
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Legal Standard
The test for determining whether a mark is primarily geographically descriptive
is whether (1) the mark (or a portion thereof) is the name of a place known
generally to the public, and (2) the public would make a goods/place association,
that is, believe that the goods identified in the application originate in that place.
See In re Societe Generale des Eaux Minerales de Vittel S.A., 824 F.2d 957, 3
USPQ2d 1450 (Fed. Cir. 1987). See also In re Newbridge Cutlery Co., 776 F.3d 854,
113 USPQ2d 1445 (Fed. Cir. 2015); In re Joint-Stock Co. “Baik”, 80 USPQ2d 1305
(TTAB 2006); In re JT Tobacconists, 59 USPQ2d 1080 (TTAB 2001). If the goods do
in fact originate from the place named in the mark, the requisite goods/place
association can be presumed. See In re Handler Fenton Westerns, Inc., 214 USPQ
848 (TTAB 1982). The examining attorney bears the burden of establishing that an
applicant’s mark is primarily geographically descriptive. In re Spirits of New
Merced LLC, 85 USPQ2d 1614 (TTAB 2007).
Discussion
Turning to the question of whether MONTUSSAN is the name of a place
generally known to the public, we look to the Vittel decision wherein our primary
reviewing Court, the Court of Appeals for the Federal Circuit, held that “it is
necessary that the purchasers perceive the mark as a place name and this is where
the question of obscurity or remoteness comes to the fore.” 3 USPQ2d at 1452.
Based upon the record in that case, the Federal Circuit found “Vittel” is the name of
a small town in France, and posed the question, “how many people in this country
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know that?” and ultimately found the evidence “insufficient to show the likelihood
of [the relevant consuming public] thinking that Vittel refers to a place where the
goods come from.” Id. In Newbridge, the Federal Circuit stated
Regarding the first prong of the test, that the population of the location
is sizable and/or that members of the consuming public have ties to the
location (to use the example in Loew’s: that Durango, Mexico, would be
recognized by “the Mexican population of this country”) is evidence
that a location is generally known. See Loew’s, 769 F.2d [764] at 766,
768 [226 USPQ 865 (Fed. Cir. 1985)]. By contrast, that the geographic
meaning of a location is “minor, obscure [or] remote” indicates that the
location is not generally known. See Nantucket, 677 F.2d [95] at 99
[213 USPQ 889 (CCPA 1982)] (internal quotations omitted). Of course,
there are many probative factors to the question of whether a location
is generally known, and these are just a few examples.

113 USPQ2d at 1449.
In support of his position that the term MONTUSSAN is primarily
geographically descriptive of Applicant’s goods, the Examining Attorney introduced
into the record a screenshot from the Internet website france-voyage.com indicating
that Montussan is a town of 2991 inhabitants in the Gironde department of France,
located approximately 15 kilometers from the city of Bordeaux, featuring vineyards
and at least one company providing lessons in viniculture.3 This evidence is
corroborated by a screenshot from the Internet website Wikipedia.org noting that
Montussan is a commune in the Gironde department in Aquitaine in southwestern
France, with a population in 2008 of 2,620.4 Screenshots from Tripadvisor.com,

3 July 25, 2014 final Office Action, p. 43-6.

4 April 29, 2014 Office Action, p. 4. The Board gives guarded consideration to evidence
taken from Wikipedia, bearing in mind the limitations inherent in this reference work, so
long as the non-offering party has an opportunity to rebut the evidence by submitting other
evidence that may call its accuracy into question. See In re IP Carrier Consulting Group, 84
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Airbnb.com, Expedia.com and Yelp.com further corroborate that Montussan is a
town near Bordeaux with one “bed and breakfast” style hotel and additional
accommodations in private homes.5 Based upon the evidence of record, there is no
dispute that “Montussan” is the name of a small town in the Gironde department of
France. The Examining Attorney asserts that
Montussan is not a remote or obscure geographic location from the
point of view of American consumers, purchasers and distributors of
wine and, by inference, especially to those Americans originally from
France or with other connections to France or to the Bordeaux region
of France.6

The Examining Attorney also submitted excerpts from the results of his search of
Google.com for the term “Montussan.”7 However, the results summaries are
truncated to such an extent that they contain insufficient information upon which
we may ascertain the nature of the use, if any, of the term “Montussan” therein. It
is well-settled that truncated results from search engines are entitled to little
weight. In re Bayer Aktiengesellschaft, 488 F.3d 960, 82 USPQ2d 1828, 1833 (Fed.
Cir. 2007). Second, many of the results are listed in the French language and thus
have no probative value absent any evidence that these apparently foreign sources
have any relevance to the perceptions of consumers in the United States. “Articles

USPQ2d 1028, 1032 (TTAB 2007). In the case before us, the Wikipedia evidence was
submitted with the Examining Attorney’s initial Office action, and Applicant had an
opportunity to rebut it.

5 February 2, 2015 Office Action, p. 8-27.

6 10 TTABVUE 5. Record citations are to TTABVUE, the Trademark Trial and Appeal
Board’s publically available docket history system. See Turdin v. Trilobite, Ltd., 109
USPQ2d 1473, 1476 n.6 (TTAB 2014). Citations to the prosecution history are by date and
page number.

7 July 25, 2014 Office Action, p. 6-7.
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submitted by opposer from foreign publications (e.g., The Economist) have not been
considered insofar as opposer did not provide evidence of U.S. circulation.” Chanel,
Inc. v. Makarczyk, 110 USPQ2d 2013, 2021, Fn 9 (TTAB 2014). See also TBMP
§1208.03 (2015) and authorities cited therein.
Upon review of the totality of the record, we find the evidence does not support
the Examining Attorney’s contention that the town of Montussan in France is
generally known to the relevant consuming public, namely, prospective purchasers
of wine and spirits. Rather, the evidence reflects that Montussan is very much an
obscure location and would likely be unknown to the relevant American consumer.
At most, the evidence shows that the town of Montussan might be known to
individuals who traveled to the town itself or have another reason to be familiar
with the wines and spirits originating there. We note the absence in the record of
evidence of such consumer recognition among American consumers. Similarly, there
is no evidence in the record of any recognition of Montussan among Americans of
French ancestry or those with connections to France, the Bordeaux region, or
French winemaking. Simply put, there is no evidence in the record that consumers
of wine in the United States are familiar with Applicant, its products, or the town of
Montussan. The only reviews in the record are of the single bed and breakfast hotel
in the town, the accommodations available in private homes in town, and a single
company that provides viniculture classes in a vineyard setting.
In further support of his contentions, the Examining Attorney submitted the
results of his search of Google Maps indicating that Montussan is located
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approximately 9 miles from Bordeaux, and a printout from Wikipedia.org regarding
Bordeaux wine.8 The Examining Attorney argues that
given the nine mile proximity between Montussan and the city of
Bordeaux and Montussan being geographically within the Gironde
department, applicant’s wine qualifies as a wine from the Bordeaux
region. Bordeaux wine has such fame and recognition among American
purchasers of French and Bordeaux wine that these American
purchasers would likely know of Montussan as a geographic place in
the Bordeaux region that produces Bordeaux wine.9

However, the Examining Attorney has provided no evidence to support his
contention that American consumers would recognize Montussan as a source of
Bordeaux wines. The mere proximity of Montussan to Bordeaux does not impart
any of the latter’s fame as a winemaking region to Applicant or its mark without
evidence of such association. The notoriety of the city of Bordeaux and its wines are
not at issue in this case. We observe nonetheless that while Booking.com lists 33
hotels and vacation properties available in and around Montussan, Google.com lists
327 hotels in Bordeaux with over 100 million user reviews.10 The location of this
town of less than 3000 inhabitants 9 miles from a much larger and more prominent
city reveals nothing about what the relevant American purchaser might perceive
the word “Montussan” to mean, and is too insignificant to show that Montussan is a
place known generally to the American purchasing public.
The evidence of record in the case before us establishes only that Montussan is a
small town in France. The record is silent as to the recognition of Montussan among

8 July 25, 2014 Office Action, p. 23-7, 50-7.

9 10 TTABVUE 6-7.

10 July 25, 2014 Office Action, p. 36, 49.
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American consumers. The mere fact that a small number of users of
Tripadvisor.com has been to the one bed and breakfast hotel in the town, or the fact
that the location of the town can be found on the Internet, does not necessarily
evidence that a place is known generally to the relevant American purchasing
public. As such, the term Montussan does not convey a readily recognizable
geographical significance to the average American consumer, but rather simply
denotes the name of an obscure or remote geographic location. See, e.g., Newbridge,
113 USPQ2d at 1450; In re Bavaria St. Pauli Brauerie Ag, 222 USPQ 926 (TTAB
1984); In re Brauerie: Aying Franz Inselkammer KG, 217 USPQ 73 (TTAB 1983).
In sum, the record does not establish that the relevant American consumer is
generally aware of the town of Montussan in France and, thus, we find that the
consumer, upon encountering the mark “Montussan” on wine and spirits, would not
believe this term is a geographic reference to the origin thereof. The first part of the
test for primarily geographically descriptive marks is therefore not met.
Accordingly, we need not and do not separately consider whether a goods/place
association exists.
Decision: The refusal to register the mark MONTUSSAN under Trademark
Act Section 2(e)(2), 15 U.S.C. §1052(e)(2), on the ground that the mark is primarily
geographically descriptive of the goods is reversed.