White

Trademark Trial and Appeal Board

Jul 20, 2006

No. 78146926 (T.T.A.B. Jul. 20, 2006)

Hearing: Mailed: July 20, 2006
January 4, 2006 PTH

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re White
________

Serial No. 78146926
_______

Eugene Berman of Law Offices of Eugene Berman for Julie
White.

M. Catherine Faint, Trademark Examining Attorney, Law
Office 103 (Michael Hamilton, Managing Attorney).
_______

Before Hairston, Kuhlke and Walsh, Administrative Trademark
Judges.

Opinion by Hairston, Administrative Trademark Judge:

Julie White, a United States citizen and a member of
the St. Regis Band of Mohawk Indians of New York, has
applied to register MOHAWK (in standard character form) on
the Principal Register as a trademark for “cigarettes.”1
The trademark examining attorney has refused
registration under Section 2(a) of the Trademark Act, 15
U.S.C. §1052(a), on the ground that when MOHAWK is used on

1 Serial No. 78146926, filed July 24, 2002, based on a bona fide
intention to use the mark in commerce on the goods.
THIS OPINION IS CITABLE AS
PRECEDENT OF THE TTAB
Ser No. 78146926
2
cigarettes, it “may falsely suggest a connection with the
federally recognized tribe the St. Regis Band of Mohawk
Indians of New York.” (Examining Attorney’s Brief at
unnumbered p. 1).
When the refusal of registration was made final,
applicant appealed. Applicant and the examining attorney
have filed briefs, and an oral hearing was held.
Evidentiary Objections and the Record
Before discussing the record, we must first consider
the evidentiary objections. Applicant objected to certain
of the web pages made of record by the examining attorney
on the ground that the “URL line” and date were not
provided. We note that the examining attorney has
furnished this information, and at the oral hearing,
applicant’s attorney withdrew the objections. Thus, we
deem the web pages at issue to be properly of record.
The examining attorney has “objected” to the reference
in applicant’s brief to “95 marks in which the term MOHAWK
is all or part of the mark” because applicant has made of
record copies of only 26 such registrations. Applicant’s
reference to “95 marks” is based on the results of a search
of the USPTO’s TESS database of applications and
registrations of marks which consist of or include the term
“Mohawk” which applicant made of record during the
Ser No. 78146926
3
prosecution of the application. As such, the search
results will be considered, but the probative value
thereof, as discussed infra, is extremely limited.
We turn then to the record. In support of her initial
refusal of registration, the examining attorney made of
record web pages which she maintains show that Indian
tribes, and the St. Regis Band of Mohawk Indians of New
York (hereinafter “Mohawk tribe”), in particular,
manufacture and sell cigarettes. With her final refusal of
registration, the examining attorney made of record five
dictionary definitions of the term “Mohawk” and a
“Wikipedia” excerpt for “Mohawk” to support her position
that MOHAWK is the same as, or a close approximation of,
the Mohawk tribe and that “consumers are likely to
recognize that the term [MOHAWK] describes the tribe.”
(Examining Attorney’s Final office action at unnumbered p.
2). Also, the examining attorney submitted web pages which
show that members of the Mohawk tribe mainly inhabit New
York and Canada. With her response to applicant’s request
for reconsideration, the examining attorney submitted more
web pages to show that Indian tribes manufacture and sell
cigarettes; and an excerpt from a reference work entitled
“American Indian Reservations and Trust Areas,” published
in 1996 by Tiller Research. This publication provides
Ser No. 78146926
4
information about Native American tribes, including the
Mohawk tribe. The examining attorney submitted this
excerpt to show that the Mohawk tribe is engaged in many
business enterprises, including the operation of smoke
shops.
Applicant, in response to the initial refusal,
submitted the results of a “Google” search for the term
“Mohawk” which shows 1,280,000 “hits.” Of these hits,
applicant submitted web pages for “Mohawk Mountain” in
Connecticut; “Mohawk College” in Ontario, Canada; “Mohawk
State Forest” in Connecticut; and “Mohawk Trail State
Forest” and “Mohawk (hiking) Trail” in Massachusetts.
Also, applicant made of record a list from a private
company’s database of third-party applications and
registrations for marks which consist of or include the
term “Mohawk.” Applicant submitted this evidence to show
that MOHAWK does not point uniquely and unmistakably to the
Mohawk tribe. Further, applicant submitted the results of
a “Google” search for the phrase “St Regis Band of Mohawk
Indians” which shows 3,180 “hits,” along with brief
excerpts of nine of the hits. Applicant submitted this
evidence to support her contention that there is no
federally recognized tribe named the “Mohawk tribe;” that
the correct name for the tribe is “St. Regis Band of Mohawk
Ser No. 78146926
5
Indians of New York” as shown by the results of the
“Google” search; and that MOHAWK does not point uniquely
and unmistakably to the Mohawk tribe because there is no
Mohawk tribe as such. Applicant also submitted an
affidavit wherein she avers that she is Native American and
is a member of the St. Regis Band of Mohawk Indians of New
York; that her business address is Frogtown Road in
Hogansburg, New York within the reservation of the St.
Regis Band of Mohawk Indians of New York; and that she is
an employee of Native American Trading Associates, a
company that manufactures and sells cigarettes under a
license granted by the St. Regis Band of Mohawk Indians of
New York. Applicant submitted this affidavit as evidence
of her connection with the Mohawk tribe.
In her request for reconsideration, applicant
submitted a declaration from Susan Jesmer, owner and sole
proprietor of Native American Trading Associates, who avers
that:
I am the owner and sole proprietor of Native
American Trading Associates, 442 Frogtown Road on
Akwesasne, the reservation of the St. Regis Band
of Mohawk Indians of New York;
Native American Trading Associates is exclusively
licensed by the trademark owner (Ms. Julie White)
to use the trademark MOHAWK™ as set forth in U.S.
Application Serial No 78/146,926, filed July 24,
2002, for cigarettes;
The St. Regis Band of Mohawk Indians of New York
is a Federally recognized tribe, with the
Ser No. 78146926
6
reservation of this sovereign nation occupying
over 20,000 acres straddling the border between
the U.S. and Canada along the St. Lawrence Seaway
spanning portions of two New York state counties
and two Canadian provinces;
Native American Trading Associates is licensed to
manufacture and to sell cigarettes to licensed
wholesalers on Akwesasne, the St. Regis Band of
Mohawk Indians of New York reservation by the St.
Regis Mohawk Tribe for any brand of the
cigarettes (as set forth in the attached
license).

Accompanying the declaration are two documents. One is
entitled “SAINT REGIS MOHAWK TRIBE Tobacco Manufacturing
License” and is issued to “Native American Trading
Associates as evidence of having agreed to the rules and
regulations regarding the Manufacturing of Tobacco Products
on the SAINT REGIS MOHAWK INDIAN RESERVATION.” Wesley
Benedict who is identified as “Compliance Director” signs
the license. It is dated October 4, 2004 and is “valid”
from October 5, 2004 to October 5, 2005. The second
document is entitled “SAINT REGIS MOHAWK TRIBE D.B.A.
Certificate” and it states that Susie Jesmer has requested
to do business as NATIVE AMERICAN TRADING ASSOCIATES, a
tobacco manufacturing business operating on the territory
of Akwesasne. The certificate is dated December 27, 2004
and states an expiration date of December 2006. Mr.
Benedict, as Compliance Director, also signed the
certificate. Applicant argues that the declaration, and
Ser No. 78146926
7
accompanying license and certificate show “that Applicant
is the owner of the MOHAWK mark for cigarettes and that she
has the type of connection [to] the St. Regis Band of
Mohawk Indians of New York contemplated by Section 2(a)
because of (i) [her membership] in the St. Regis Band of
Mohawk Indians of New York; (ii) the exclusive license to
use the mark MOHAWK for cigarettes which she granted to the
Native American Trading Associates and (iii) the
contractual relationship with the St. Regis Band of Mohawk
Indians of New York of her exclusive licensee (Native
American Trading Associates) to make and sell cigarettes.”
In addition, applicant submitted a list from the
USPTO’s TESS database of third-party applications and
registrations of marks which consist of or include the term
“Mohawk;” printouts of twenty-six registrations and three
applications from this same database for the mark MOHAWK
per se for various goods; and web pages that discuss the
U.S. Army “Mohawk” reconnaissance/attack airplane.
Applicant contends that this is further evidence that
MOHAWK does not point uniquely and unmistakably to the
Mohawk tribe. Finally, applicant submitted an excerpt from
the July 12, 2003 Federal Register which sets forth the
names of all federally recognized Native American tribes.
The name “Saint Regis Band of Mohawk Indians of New York”
Ser No. 78146926
8
is listed therein, but the name “Mohawk” is not. Again,
applicant argues that this shows that MOHAWK does not point
uniquely and unmistakably to the Mohawk tribe because there
is no Mohawk tribe as such.
The Section 2(a) refusal
Section 2(a) prohibits, inter alia, the registration
of a mark if it “consists of or comprises … matter which
may … falsely suggest a connection with persons, living or
dead, institutions, beliefs, or national symbols.” As the
Court explained in The University of Notre Dame du Lac v.
J.C. Gourmet Food Imports Co., Inc., 703 F.2d 1372, 217
USPQ 505, 508 (Fed. Cir. 1983), Section 2(a) was designed
to protect “the name of an individual or institution which
was not a ‘technical’ trademark or ‘trade name’ upon which
an objection could be made under Section 2(d).” Further,
the Court stated that Section 2(a) embraces the concepts of
the right of privacy and the related right of publicity.
217 USPQ at 509. To support a refusal under the “falsely
suggests a connection” clause of Section 2(a), it is the
examining attorney’s burden to show: (1) that the mark is
the same as, or a close approximation of, the name or
identity previously used by another person or institution;
(2) the mark would be recognized as such, in that it points
uniquely and unmistakably to that person or institution;
Ser No. 78146926
9
(3) the person or institution named by the mark is not
connected with the activities performed by applicant under
the mark; and (4) the fame or reputation of the person or
institution is such that, when the mark is used with the
applicant’s goods or services, a connection with the person
or institution would be presumed. See Buffett v. Chi-
Chi’s, Inc., 226 USPQ 428 (TTAB 1985). See also, In re
Sloppy Joe’s International Inc., 43 USPQ2d 1350 (TTAB
1997); and In re Kayser-Roth Corp., 29 USPQ2d 1379 (TTAB
1993).
The examining attorney argues first that MOHAWK is the
same as or a close approximation of the name for the
federally recognized tribe the St. Regis Band of Mohawk
Indians of New York, and second that the public would
recognize MOHAWK as identifying this tribe, that is, the
term MOHAWK points uniquely and unmistakably to the Mohawk
tribe. In support of her position on these two matters,
the examining attorney relies on five dictionary excerpts,
of which the following two are representative. One excerpt
is from The American Heritage Dictionary of the English
Language (Third Edition 1992 online edition) wherein
“Mohawk” is defined as:
a. A Native American people formerly inhabiting
northeast New York along the Mohawk and upper Hudson
valleys north to the St. Lawrence River with present-
Ser No. 78146926
10
day populations chiefly in southern Ontario and
extreme northern New York. The Mohawk were the
easternmost member of the Iroquois confederacy.
b. A member of the people.

Another excerpt is from the Merriam-Webster Online
Dictionary wherein “Mohawk” is defined as:
1. a member of an American people of the Mohawk
valley of New York;
2. the Iroquois language of the Mohawk people;
3. a hairstyle with a narrow center strip of
upright hair and the sides shaved.

Applicant, on the other hand, argues that MOHAWK is
not the same as or a close approximation of the name St.
Regis Band of Mohawk Indians of New York, and that the
public would not recognize MOHAWK as identifying the Mohawk
tribe, that is, the term MOHAWK does not point uniquely and
unmistakably to the Mohawk tribe. Applicant contends that
the examining attorney’s analysis overlooks the other
significant terms in the name of the tribe; St. Regis and
New York. Further, applicant argues that as evidenced by
the dictionary definitions, the term “Mohawk” has other
meanings, and that the term is “broadly and commonly used
to refer to numerous other geographic areas, institutions,
products, etc.” and therefore the term cannot be
unmistakably associated with the designation for the
federally recognized Mohawk tribe. (Applicant’s Brief at
p. 9).
Ser No. 78146926
11
We consider first whether MOHAWK is the same as or a
close approximation of the designation for the federally
recognized tribe St. Regis Band of Mohawk Indians of New
York. As the Board stated in another case involving this
applicant, In re Julie White, 73 USPQ2d 1713, 1719 (TTAB
2004)[APACHE would falsely suggest a connection between
applicant and the federally recognized Apache Native
America tribes], “an applicant cannot take a significant
element of the name of another and avoid a refusal by
leaving one or more elements behind, provided that that
which has been taken still would be unmistakably associated
with the other person.” In this case, we are not persuaded
by applicant’s argument that MOHAWK is not the same as or a
close approximation of the designation for the federally
recognized St. Regis Band of Mohawk Indians of New York
because the terms St. Regis and New York are not included
in applicant’s mark. We find that the dictionary
definitions submitted by the examining attorney are
sufficient to establish that MOHAWK is the same as or a
close approximation of the federally recognized tribe St.
Regis Band of Mohawk Indians of New York.
As to whether MOHAWK points uniquely and unmistakably
to the Mohawk tribe, applicant argues that “the [Merriam-
Webster Online Dictionary] excerpt defines the term
Ser No. 78146926
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‘Mohawk’ to mean either (1) a member of an American Indian
people of a specified place, (2) a language or (3) a type
of haircut, but not as a tribe or certainly not the ‘Mohawk
Tribe,’ with which the Examining Attorney has alleged a
connection.” (emphasis in original) (Applicant’s brief at
p. 7). Because the term “Mohawk” has “other” meanings,
applicant argues that it cannot point uniquely and
unmistakably to the Mohawk tribe. However, each of these
other meanings is associated with the Mohawk tribe. The
first is the name for a member of the Mohawk tribe. The
second is the language spoken by the tribe, and the third
is the name of a hairstyle associated with members of the
tribe. With respect to the last meaning, we judicially
notice2 the following definitions:
Mohawk²: A hairstyle in which the scalp is shaved
except for an upright strip of hair that runs
across the crown of the head from the forehead to
the nape of the neck. [After MOHAWK¹.] The
American Heritage Dictionary of the English
Language (Fourth edition 2000).

Mohawk: Style in which entire head is shaved
except for upstanding fringe of hair, about 3”
high and 2” or more wide, running from front brow
to the nape of the neck. Sometimes left long and
made to stand up in “Spikes” with gel. See
Porcupine. Der. Adapted from style worn by

2 The Board may take judicial notice of dictionary definitions.
University of Notre Dame du Lac v. J.C. Gourmet Food Imports Co.,
213 USPQ 594 (TTAB 1982), aff’d 703 F.2d 1372, 217 USPQ 505 (Fed.
Cir. 1983).
Ser No. 78146926
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Mohawk Indians. Fairchild’s Dictionary of
Fashion (Second edition 1988).

These other meanings, then, suggest that the term “Mohawk”
is historically associated with the Mohawk tribe.3
Applicant also argues that there are so many other
uses of “Mohawk” and that the term appears in so many
registrations and applications that “Mohawk” cannot be
unmistakably associated with the Mohawk tribe. Applicant
has made of record evidence to establish that “Mohawk” is
the name of a ski resort, a college, two state forests, and
a hiking trail. Further, applicant has submitted evidence
which shows that “Mohawk” has been used by the U.S. Army as
the name of an aircraft.
While at first blush this evidence of other uses of
“Mohawk” would appear to suggest that the term is not
unmistakably associated with the tribe, closer scrutiny
reveals otherwise. The Mohawk Mountain ski resort and one
of the Mohawk state forests are both located in northwest
Connecticut, an area not far-removed from that part of
“present-day” upstate New York which is inhabited by the
Mohawk tribe. Mohawk college is located in Ontario, Canada,
an area inhabited by the Mohawk tribe. Mohawk Trail State

3 As noted previously, the examining attorney submitted an
excerpt from the “Wikipedia” website concerning the “Mohawk” hair
style. However, we have not relied on this excerpt in reaching
our conclusion.
Ser No. 78146926
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Forest in Massachusetts and the Mohawk (hiking) Trail are
both located in the northern part of western Massachusetts,
also an area near that part of “present-day” upstate New
York which is inhabited by the Mohawk tribe. Insofar as
the Mohawk (hiking) Trail is concerned, we note that the
printout submitted by applicant for the trail shows a
picture of a statue of a Native American. Thus, it is
likely that the ski resort, college, both state forests,
and hiking trail were named after the Mohawk tribe because
of their close proximity to the lands inhabited by the
Mohawk tribe. In regard to the use of “Mohawk” by the U.S.
Army, we note that the printout submitted by applicant
includes a depiction of a Native American which suggests
that the aircraft also was named after the Mohawk tribe.
Because these places and the aircraft appear to be named
after the Mohawk tribe, these uses of “Mohawk” do not
detract from the association of the name “Mohawk” with the
Mohawk tribe. Thus, we are unable to conclude therefrom
that the term “Mohawk” does not point uniquely to the
Mohawk tribe.
Insofar as the evidence on which applicant relies to
establish that there are other MOHAWK marks in use, this
evidence is of limited probative value. The submission of
a list of registrations and applications, whether from a
Ser No. 78146926
15
private company’s database or the USPTO’s TESS database, is
insufficient to make such registrations and applications of
record. See In re Carolina Apparel, 48 USPQ2d 1542, 1542
n. 2 (TTAB 1998) [“The Board does not take judicial notice
of third-party registrations, and the mere listing of them
is insufficient to make them of record”]. Further, the
actual copies of third-party registrations and applications
are not evidence that the marks which are the subjects
thereof are in use and that the public is familiar with the
use of those marks. See, e.g., AMF Inc. v. American
Leisure Products, Inc., 474 F.2d 1403, 177 USPQ 268 (CCPA
1973); In re Hub Distributing, Inc., 218 USPQ 284 (TTAB
1983); and In re Duofold Inc., 184 USPQ 638 (TTAB 1974).
In this regard, we note that applicant has pointed to no
case law holding that third-party registrations and/or
applications should be accorded significant weight in our
analysis of a Section 2(a) false suggestion refusal. In
this case, we are unable to conclude from the third-party
MOHAWK registrations and applications that the public is
aware of the marks shown therein such that the term
“Mohawk” does not point uniquely to the Mohawk tribe.
We now turn to the third factor in the Section 2(a)
false suggestion analysis, that is, whether there is a
connection of the type contemplated by Section 2(a) between
Ser No. 78146926
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applicant and the Mohawk tribe. The examining attorney
argues that applicant does not have the type of connection
contemplated by Section 2(a). It is the examining
attorney’s position that applicant’s mere membership in the
tribe is not enough and that there must be a commercial
endorsement of her activities by the tribe.
Applicant, on the other hand, points to the facts that
she is a member of the Mohawk tribe, that the Mohawk tribe
issued a certificate to applicant’s employer, Native
American Trading Associates, to manufacture and sell
cigarettes, and that applicant has in turn licensed use of
her MOHAWK mark to Native American Trading Associates.
In the case of In re Sloppy Joe’s International Inc.,
43 USPQ2d 1350 (TTAB 1997), the applicant sought to
register the mark SLOPPY JOE’S and a representation of
Ernest Hemingway for restaurant and bar services. In
affirming the refusal of registration under Section 2(a) on
the ground of a false suggestion of a connection with
Ernest Hemingway, the Board held that Ernest “Hemingway’s
friendship with the original bar owner of Sloppy Joe’s bar,
his frequenting the bar and use of the back room as an
office was not the kind of ‘connection’ contemplated by
Section 2(a). Rather, a commercial connection, such as an
ownership interest or commercial endorsement or sponsorship
Ser No. 78146926
17
of applicant’s services, would be necessary to entitle
applicant to register the involved mark.” Id. at 1354.
In the more recent case of In re Los Angeles Police
Revolver and Athletic Club, Inc., 69 USPQ2d 1630 (TTAB
2003), the applicant, a police athletic club, sought to
register the mark TO PROTECT AND TO SERVE for clothing and
beverage glasses. The identical phrase “To Protect and To
Serve” is the official slogan of the Los Angeles Police
Department (LAPD). In reversing the refusal to register
under Section 2(a) on the ground of a false suggestion of a
connection between the police athletic club and the LAPD,
the Board found that the evidence demonstrated that the
police athletic club and the LAPD had an extensive mutual
relationship for decades. Although there was no formal or
written agreement between the police athletic club and the
LAPD concerning the club’s activities, the evidence showed
that the LAPD had “openly advanced the commercial
activities of Applicant” and the Board found “a substantial
commercial connection between applicant and the LAPD.” Id.
at 1633. The LAPD’s endorsement or sponsorship of the
club’s specific goods, namely clothing and beverage
glasses, was unnecessary; rather a general commercial
connection between the club and the LAPD was sufficient.
Ser No. 78146926
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The question, then, is whether a commercial connection
has been established between applicant and the Mohawk tribe
in light of the facts that applicant is a member of the
tribe, the tribe has issued a license and d/b/a certificate
to applicant’s employer, Native American Trading Associates
in connection with manufacturing tobacco products, and
applicant has licensed use of her rights in the MOHAWK mark
to Native American Trading Associates.
We recognize that, unlike the above cases, applicant
is connected to the institution in this case, in the sense
that she is a member of the Mohawk tribe. Yet, applicant
is but one member of the tribe, and more than one
individual can correctly claim a connection to the Mohawk
tribe.
To overcome a Section 2(a) refusal in such a
situation, a general commercial connection between the
applicant and the institution is insufficient. Rather, the
commercial connection must be specific and relate to the
particular goods and services. In other words, there must
be a specific endorsement, sponsorship or the like of the
particular goods and services, whether written or implied.
On the facts of this case, we find that a specific
commercial connection between applicant and the Mohawk
tribe has not been proven. The license and d/b/a
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certificate issued by the Mohawk tribe to Native American
Trading Associates is not evidence that the tribe endorses
or is a sponsor of the cigarettes applicant intends to
sell. We note that the license is general in nature and
simply states that Native American Trading Associates has
agreed to the rules and regulations regarding the
manufacturing of tobacco products on the Mohawk tribe’s
reservation. The d/b/a certificate also is general in
nature and states that Native American Trading Associates
has requested and been approved to operate a tobacco
manufacturing business on the reservation. Neither of
these documents, however, is a specific endorsement or
sponsorship of Native American Trading Associates’
activities, and in turn, the cigarettes applicant intends
to sell. Thus, we find that these documents do not
evidence a specific commercial connection between applicant
and the Mohawk tribe.
Further, this is not a situation where we can imply a
specific commercial connection between applicant and the
Mohawk tribe. While the tribe is undoubtedly aware of
Native American Trading Associates’ tobacco manufacturing
activities, there is no evidence of a long-standing mutual
relationship between Native American Trading Associates and
the tribe. On the contrary, both the license and d/b/a
Ser No. 78146926
20
certificate were issued in 2004 and both are for relatively
short periods of time. Moreover, there is no evidence that
the Mohawk tribe has openly advanced Native American
Trading Associates’ tobacco manufacturing activities. In
short, this is not a situation where we can imply that the
Mohawk tribe has specifically endorsed Native American
Trading Associates’ tobacco manufacturing activities, and
in turn, the cigarettes applicant intends to sell.
The awarding of a federal registration to applicant
individually for the mark MOHAWK for cigarettes would
amount to the awarding of the tribe’s “imprimatur” to the
mark. In the absence of a specific commercial connection
between the Mohawk tribe and applicant with respect to the
goods involved herein, namely, cigarettes, we are unable to
find the kind of commercial connection contemplated by
Section 2(a).
As to the fourth factor of the Section 2(a) test, we
must consider whether the name “Mohawk” is of sufficient
fame or reputation that a connection with the federally
recognized Mohawk tribe would be presumed by consumers of
cigarettes. Here, the test is whether the name “Mohawk”
per se is unmistakably associated with the Mohawk tribe,
and as used, would point uniquely to the tribe.
Ser No. 78146926
21
The record shows that the Mohawk tribe inhabits New
York and Canada. Further, the term “Mohawk” is readily
found in dictionaries and in such listings it is defined as
Native Americans who inhabit these areas. The Tiller
publication discusses several commercial enterprises of the
Mohawk tribe that would contribute to the fame and
reputation of the tribe. The tribe began operating slot
machines for gaming in the 1970’s. It also operates a
bingo hall which includes a full-service restaurant and a
gift shop that sells souvenirs and discount cigarettes.
There are two tribal-affiliated steel erector contractors
doing business, and the reservation boasts the largest
manufacturer of lacrosse sticks in the United States.
Other tribal-affiliated businesses include cell phone
systems, computers, smokeshops, construction contactors,
and stores and galleries which feature handmade Indian arts
and crafts. In addition, the Frogtown International
Speedway, a dirt track stock car racing venue is located on
the reservation as well as a golf course which has a
restaurant, pro shop and bar. This evidence is more than
sufficient to establish that the Mohawk tribe is well known
among residents in the region and visitors to the area.
Our final inquiry then is whether consumers of
cigarettes would think only of the well-known Mohawk tribe
Ser No. 78146926
22
when the name is used on or in connection with cigarettes.
In this regard, the record is quite clear that many Native
American tribes, the Mohawk and others, run smokeshops,
many including Internet sales among their operations. In
addition, the record is clear that Native Americans not
only are engaged in large-scale marketing of cigarettes,
but in manufacturing of Native American brands. As
indicated, applicant has stated that she is a member of the
Mohawk tribe which is in the business of manufacturing
cigarettes through its licensee Native American Trading
Associates.
The examining attorney submitted numerous web pages
that reveal marketing of Native American brands of
cigarettes. One web page shows a national map of cigarette
retailers located on Native American reservations, with a
banner ad at the top for “cigarettespecials.com” which
touts “low prices” and the listing for the “Mohawk Nation
Territory” includes “Native American Trading Associates.”
Another web page is for Discount Indian Tobacco which
states “Cigarettes shipped to your door from Sovereign
Seneca Indian Territory – Native Brand Cigarettes start at
only $11.49 a Carton.” An article from the web page for
the National Association of Convenience Stores bears the
headline “New York Tribe sets Up Kiosks for Tax-Free
Ser No. 78146926
23
Cigarettes” and goes on to discuss that the Oneida Nation
has installed kiosks in New York convenience stores to
allow customers to order tax-free cigarettes. An article
from the web page www.indiancountry.com discusses the
merger of two Native American online ventures, one of which
is AllNative.com and is reported to have “started more than
a year ago with sales of American Indian cigarettes, teas
and coffee.” Finally, an article retrieved from the Nexis
database which appeared in Forbes magazine states, in
pertinent part, “[a]s one favorable court decision has
followed another, the tribes have begun learning to impose
taxes productively and to exploit their special territorial
status by selling cigarettes, liquor and even gasoline free
of state and local taxes.”
We find that purchasers of cigarettes would be aware
of Native American manufacturing and marketing of Native
American brand cigarettes, and, given the fame of the name
of the Mohawk tribe, would think uniquely of the Mohawk
tribe when they see MOHAWK as a mark used on or in
connection with cigarettes.
In sum, we conclude that the record supports a refusal
of registration of MOHAWK as a mark for cigarettes because
use of the name of the federally recognized St. Regis Band
Ser No. 78146926
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of Mohawk Indians of New York would falsely suggest a
connection between applicant and the Mohawk tribe.
Decision: The refusal to register under Section 2(a)
is affirmed.