Jonathan Drew, Inc. d/b/a Drew Estate

Trademark Trial and Appeal Board

Jan 28, 2011

No. 77099522 (T.T.A.B. Jan. 28, 2011)

Oral Hearing: August 3, 2010 Mailed: January 28, 2011

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Jonathan Drew, Inc. d/b/a Drew Estate
________

Serial No. 77099522
_______

Philip J. Foret of Dilworth Paxson LLP for Jonathan Drew, Inc.
d/b/a Drew Estate.

David C. Reihner, Trademark Examining Attorney, Law Office 111
(Craig D. Taylor, Managing Attorney).
_______

Before Holtzman, Walsh and Bergsman, Administrative Trademark
Judges.

Opinion by Holtzman, Administrative Trademark Judge:

Jonathan Drew, Inc. (applicant) has filed an application to
register the standard character mark KUBA KUBA for goods
identified, as amended, as "cigars, tobacco and related products,
namely, cigarettes, cigar boxes, lighters, holders, ashtrays,
cigar bands, cigar cutters, humidors, and cigar tubes" in Class
34.1

1 Serial No. 77099522, filed February 5, 2007, based on an allegation
of a bona fide intention to use the mark in commerce.
THIS OPINION IS
A PRECEDENT OF
THE TTAB
Serial No. 77099522

2
The trademark examining attorney ultimately refused
registration on the ground that the mark is primarily
geographically deceptively misdescriptive of the goods under
Section 2(e)(3) of the Trademark Act.
When the refusal was made final, applicant appealed. The
appeal has been briefed, and an oral hearing was held.
A mark is primarily geographically deceptively
misdescriptive of the goods if (1) the mark's primary
significance is a generally known geographic location; (2) the
relevant public would be likely to believe that the goods
originate in the place named in the mark (i.e., that a
goods/place association exists) when in fact the goods do not
come from that place; and (3) the misrepresentation is a material
factor in the consumer's decision. See In re California
Innovations Inc., 329 F.3d 1334, 66 USPQ2d 1853, 1858 (Fed. Cir.
2003).
The examining attorney argues that the mark KUBA KUBA is a
mere misspelling of Cuba, the name of a generally known
geographic location. Of record is an excerpt from The Columbia
Gazetteer of the World Online (2005),2 which establishes that
Cuba is a large island country located in the Caribbean Sea with
a population of over 11 million people. The Gazetteer entry also
states that cigars are one of five “important” exports from Cuba

2 From the website columbiagazetteer.org.
Serial No. 77099522

3
and that such cigars contain "[h]igh-quality tobacco." In
addition, the examining attorney submitted printouts from various
third-party websites which show that Cuba is known for, and is
famous for, its production of tobacco and cigars. Excerpts from
several of these websites are listed below.
Alumna's photos show how Cuba's world-renowned cigars
are crafted:
It is almost impossible to get hold of a box of
world-renowned Cuban cigars in the United States, and
few American travelers visit Cuba. But Cornell
alumna Helen Kleinberg '48 is one who has been to
Cuba and back, and she has captured the making of the
much coveted Cuban cigar....
news.cornell.edu

Cuban Life & Boxes [Exhibit]:
Cuba is rightly renowned for its cigar tobacco. Most
famous is that from the Vuelta Abajo in the Pinar del
Rio region of Western Cuba. ... Vuelta Abajo
tobacco is the standard against which all other cigar
tobaccos are measured.
nationalcigarmuseum.com

Cigar Tobacco Growing Regions:
Cuban tobacco is acknowledged as among the finest in
the world. ... In general, Cuban tobacco is strong
and full-bodied, with spicy and aromatic flavors. It
is also renowned for its suppleness.
jrcigars.com

How to Spot Fake Cuban Cigars:
Everyone knows that Cuban cigars are the most coveted
cigars, renown [sic] worldwide for their smoothness
and rich flavors. Indeed, Cuban cigars are so prized
that many illegitimate dealers have been known to
sell fake Cubans to unsuspecting cigar smokers.
smokers-express.net

Traditions: South Florida Folklife:
Handrolled Cuban cigars are world renowned for their
excellence. With the U.S. embargo on Cuban products,
many small cigar-rolling businesses opened in Miami.
Serial No. 77099522

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Most of those who own or work in these operations
learned the trade in Cuba, and some come from
families that have made cigars for generations.
hmsf.org (Historical Museum of Southern Florida)
Applicant does not dispute that the primary meaning of Cuba
is geographic, or that Cuba is famous for its tobacco products
and cigars. Applicant, however, argues that the examining
attorney has not established prima facie that KUBA KUBA is a mere
misspelling of Cuba and that, in any event, the mark is not a
mere misspelling of Cuba. It is applicant's contention that the
mark has other geographic as well as non-geographic meanings such
that it would not be perceived as a reference to Cuba.
Primary Significance of KUBA KUBA
A mark that is a mere misspelling or variant of a name for a
geographic location is considered the equivalent of the official
name for purposes of determining the primary meaning of the mark.
See, for example, Stabilisierungsfonds fur Wein v. Peter Meyer
Winery GmbH, 9 USPQ2d 1073, 1076 (TTAB 1988) (GOLDENER TROPFEN, a
misspelling of Goldtropfchen, deceptive for wine not from that
region in West Germany); Bureau National Interprofessionnel Du
Cognac v. International Better Drinks Corp., 6 USPQ2d 1610, 1615
(TTAB 1988) (COLAGNAC, a misspelling of Cognac, deceptive for
brandy not made from wines produced from grapes grown in the
Cognac region of France).
Serial No. 77099522

5
The question is whether the mark KUBA KUBA would be
perceived as a mere misspelling of the generally known geographic
place, Cuba, or whether it would have some other significance to
the relevant public. To make this determination, we consider
whether KUBA KUBA is sufficiently similar to Cuba in terms of
appearance, sound and meaning such that it would be perceived as
the equivalent of Cuba. Cf. In re Bayer Aktiengesellschaft, 488
F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir. 2007) ("In determining
whether ASPIRINA is sufficiently similar to aspirin [the generic
term for analgesics] to render it merely descriptive of analgesic
goods, the relevant features of the mark are considered including
appearance, sound, and meaning.").
KUBA and Cuba are similar in appearance. Applicant has
simply used a "K" in place of the "C" as the initial letter.
The two terms are at least similar in pronunciation, and they
might reasonably be pronounced the same. Both Cuba and KUBA
begin with the sound of the letter "k." The examining attorney
notes that "Cuba" is pronounced as "kyόobĕ" as shown in the
Encarta World English Dictionary (2009).3 The "ku" syllable in
KUBA may be pronounced with a double "o" sound as in "tube," or
it may be pronounced with a long "u" sound as in "Cuba," in which
case the two terms would sound the same. We note, for example,

3 From the website encarta.msn.com.

Serial No. 77099522

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that the "ku" syllable in the dictionary word "kudos" may be
pronounced either way, as "kyo̵̅o̅′däs′" or "ko̵̅o̅′-; -dōs′."
Webster's New World College Dictionary (2010).4
There is nothing fanciful or unusual about the spelling of
Cuba as KUBA. Indeed, a number of cases have found that a
misspelling formed by substituting the letter "k" for a "c" is
not sufficient to turn the otherwise unregistrable term into a
registrable mark. See, for example, King-Kup Candies, Inc. v.
King Candy Co., 288 F.2d 944, 129 USPQ 272, 273 (CCPA 1961)
("...'Kup,' which is the full equivalent of the word 'cup,' is
descriptive"); American Druggist Syndicate v. United States
Industrial Alcohol Co., 2 F.2d 942, 943 (D.C. Cir. 1924) ("'Al-
Kol' is merely a phonetic or misspelling of the word 'alcohol,'
and is descriptive of the goods"); In re Organik Technologies
Inc., 41 USPQ2d 1690, 1694 (TTAB 1997) ("ORGANIK, which is the
phonetic equivalent of the term 'organic,' is deceptive.").
As to meaning, applicant argues that the term KUBA alone,
and the mark KUBA KUBA as a whole, would convey meanings and
associations that are different from the country of Cuba. In
particular, applicant argues that consumers would associate KUBA

4 Retrieved from the website yourdictionary.com. The Board may take
judicial notice of dictionaries, including online dictionaries which
exist in printed format. See In re CyberFinancial.Net Inc., 65 USPQ2d
1789, 1791 n.3 (TTAB 2002). See also 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).
Serial No. 77099522

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with the Kuba Kingdom, and that the mark would be primarily
viewed as a non-geographic term with a meaning "associated with
the overall look and feel of the art and culture of the African
Kuba Kingdom." Brief, p. 9.
According to the Wikipedia entry submitted by applicant
(wikipedia.org), the Kuba Kingdom was a pre-colonial Central
African state which existed from the 16th century until about the
19th century in what is now the Democratic Republic of the Congo.
A printout from the website sujaro.com states that the Kuba
Kingdom eventually split into a number of separate chiefdoms with
an existing population of about 250,000. Based on information
appearing on other websites submitted by applicant, the Kuba
people are known for their embroidered textiles and elaborate
ceremonial costumes and regalia; and for finely crafted masks,
spears and knives. See, e.g., smithsonianeducation.org;
forafricanart.com; authenticafrica.com. The evidence shows that
some of these products, such as masks and knives, are offered for
sale to the public on various websites, for example, sephari.com;
collectplaza.com; theebonytree.com; and sujaro.com.
Applicant also argues that the mark has other geographic as
well as non-geographic meanings. Applicant states that Kuba
"identifies numerous locations throughout the world," including
Serial No. 77099522

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Uzbekistan;5 Panama;6 Azerbaijan;7 and Japan;8 that it is also a
Polish given name in Poland;9 and an acronym for the Korea
University Buddy Assistance (KUBA) program.10 In addition,
applicant submitted a Google search summary showing multiple
listings for a restaurant called "Kuba Kuba" located in Richmond,
Virginia.
In evaluating the likely meaning of KUBA KUBA we must
consider the mark in relation to the goods with which the mark is
(or will be) used and from the perspective of the relevant
purchasers. See In re MCO Properties Inc., 38 USPQ2d 1154 (TTAB
1995); and In re Jim Crockett Promotions Inc., 5 USPQ2d 1455,
1456 (TTAB 1987) ("a mark must be considered in the context of
its use and the meaning it would have for the relevant public
when so used."). The goods in this case include tobacco and
cigars which are ordinary consumer items purchased by the general
public.
Unless the alternative geographic or non-geographic meanings
of a geographical term are generally known to the relevant
public, such meanings can be of no importance in determining the

5 maplandia.com ("Google Maps World Gazetteer").
6 fallingrain.com ("Maps, Weather and Airports").
7 jewishvirtuallibrary.org (an article entitled "The Virtual Jewish
History Tour: Azerbaijan" by Joanna Sloame.
8 fallingrain.com, supra.
9 behindthename.com ("the etymology and history of first names").
babylon.com ("translation and dictionary tool").
10 Document entitled "Global KU Frontier Spirit" (promoting a "study
abroad" program).
Serial No. 77099522

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perception of the relevant public. There is no evidence that the
"alternative" meanings cited by applicant would be anything but
obscure to most consumers. Nor can we find based on the evidence
that more than a small segment of the public would be familiar
with the Kuba Kingdom or its culture. As applicant acknowledges,
the Kuba Kingdom is known in "certain circles" for its art.
Resp. November 29, 2007. Moreover, even if consumers were
generally familiar with the Kuba Kingdom, this meaning would not
detract from the significance of KUBA KUBA as a reference to
Cuba. Applicant's goods are cigars, not tribal artifacts for
which the Kuba Kingdom is known. When KUBA KUBA is viewed in
connection with cigars, for which Cuba is famous, the most likely
meaning of the term would be Cuba.
In fact, certain evidence relied on by applicant to show
non-Cuban meanings of KUBA and KUBA KUBA would actually support a
finding that the mark means Cuba. The "Kuba Kuba" restaurant
listed in applicant's Google search summary is described as
"Richmond's best option for Cuban food" (kubakuba.info); and as
"Tasty Cuban fare in lively bodega..." (gayot.com). The Babylon
website listing the various meanings of "Kuba," also refers to
"Kuba" as "an alternative spelling (or name) for Cuba."
Because KUBA looks and sounds similar to Cuba, with no other
recognized and/or pertinent meaning attached to that particular
spelling, we find that the primary significance of KUBA is the
Serial No. 77099522

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geographic meaning of Cuba. Furthermore, the repeated use of
KUBA does not alter its impression as a geographic term. See,
for example, In re Litehouse Inc., 82 USPQ2d 1471, 1474 (TTAB
2007) (CAESAR!CAESAR! merely descriptive of salad dressing); In
re Disc Jockeys, Inc., 23 USPQ2d 1715, 1716 (TTAB 1992) (DJDJ
merely descriptive of disc jockey services); In re Juleigh Jeans
Sportswear Inc., 24 USPQ2d 1694 (TTAB 1992) (LONDON LONDON
geographically deceptive of clothing). Contrary to applicant's
contention, it is not significant that the cited cases involve
the repetition of the "dictionary spelling" of descriptive terms.
The mere repetition of this slightly misspelled version of the
geographic term Cuba imparts no new or different meaning to KUBA
apart from its meaning as a reference to Cuba. There is nothing
in the composite mark KUBA KUBA either visually or conceptually
which causes the word KUBA to lose its meaning as a reference to
Cuba.
We find that the term KUBA KUBA denotes Cuba, a well known
geographic location, and moreover, that the geographic meaning of
the mark is its primary meaning.11

11 Applicant states in its brief that after this appeal was instituted,
applicant acquired by way of an assignment a registration on the
Principal Register for the mark KUBA CIGARS and design (Registration
No. 3370675) for cigars made from Cuban seed tobacco (among other
products). Applicant did not request a remand to properly make this
registration of record, and we do not take judicial notice of
registrations residing in the Office. We recognize the Federal Circuit
exercised its discretion to take judicial notice of third-party
registrations in an ex parte appeal. In re Chippendales USA, Inc., 622
Serial No. 77099522

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Goods/Place Association and Origin of the Goods
As noted above, the Gazetteer and website evidence submitted
by the examining attorney establishes, and applicant does not
dispute, that cigars are produced in Cuba. Furthermore,
applicant effectively concedes that its tobacco products and
cigars will not originate in Cuba and, moreover, applicant
specifically states that it does not intend to use the mark in
connection with cigars made from Cuban seed tobacco. Resp.,
March 9, 2009. Accordingly, we find that the relevant public
would be likely to believe that applicant's cigars offered under
the mark KUBA KUBA come from Cuba, i.e., that a goods/place
association exists, when in fact the goods will not come from
that place. See California Innovations, supra at 1857 (noting
the "relatively easy burden of showing a naked goods-place
association.").

F.3d 1346, 96 USPQ2d 1681, 1688 (Fed. Cir. 2010). However, the Board’s
well-established practice is not to take judicial notice of
registrations that reside in the USPTO, and we do not take judicial
notice of applicant's late-filed registration here. See In re Jump
Designs LLC, 80 USPQ2d 1370, 1372-73 (TTAB 2006); In re Volvo Cars of
North America Inc., 46 USPQ2d at 1456 n.2; In re Duofold Inc., 184 USPQ
638, 640 (TTAB 1974). We add that even if the registration was
properly of record, it would not help applicant overcome the Section
2(e)(3) refusal because, as discussed below, applicant’s cigars under
the KUBA KUBA mark will neither originate in Cuba nor be made from
Cuban seed tobacco.

Serial No. 77099522

12
Materiality
"[I]n order to establish a prima facie case of materiality
there must be some indication that a substantial portion of the
relevant consumers would be materially influenced in the decision
to purchase the product or service by the geographic meaning of
the mark." In re Spirits International N.V., 563 F.3d 1347, 90
USPQ2d 1489, 1495 (Fed. Cir. 2009) (finding that the materiality
test of Section 2(e)(3) embodies a requirement that a
"substantial portion" of the relevant consumers is likely to be
deceived).
The Gazetteer and website evidence submitted by the
examining attorney establishes not only that tobacco and cigars
are produced in Cuba, but that cigars are an important product of
Cuba, that Cuba is known for high quality tobacco and that Cuba
is known for and famous for its cigars. Because we have
determined that the primary significance of KUBA KUBA to the
relevant public is the geographic place, Cuba, and in view of the
demonstrated fame and reputation of Cuban cigars to the relevant
public, we may infer that at least a substantial portion of
consumers who encounter KUBA KUBA on applicant's cigars are
likely to be deceived into believing that the cigars come from
Cuba. Cf., for example, In re Boulevard Entertainment, Inc., 334
F.3d 1336, 1339, 67 USPQ2d 1475, 1478 (Fed. Cir. 2003)
("dictionary evidence alone can be sufficient to satisfy the
Serial No. 77099522

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PTO's burden" of showing that "a substantial composite of the
general public considers a word scandalous."). See California
Innovations, supra, citing In re Save Venice New York, Inc., 259
F.3d 1346, 59 USPQ2d 1778 (Fed. Cir. 2001); In re Loew's
Theatres, Inc., 769 F.2d 764, 226 USPQ 865, 868 n.6 (Fed. Cir.
1985); and In re House of Windsor, 221 USPQ 53, 56-57 (TTAB
1983); finding, respectively, that materiality may be inferred
from a showing that the goods are "a principal product" of the
place named in the mark, that the place is "noted for" the goods,
or that the goods are, or are related to, the "traditional"
products of the place named in the mark.
Applicant argues, citing Spirits and California Innovations,
that the USPTO's burden of establishing deceptiveness now
requires a higher showing of deceptiveness, and that there has
been no showing in this case that a substantial portion of the
relevant consumers would be materially influenced to purchase
applicant's products. In support of this contention, applicant
quotes California Innovations as stating, "A mere inference,
however, is not enough to establish the deceptiveness that brings
the harsh consequence of non-registrability...."
First, applicant has missed the context for the Federal
Circuit's statement. The Court in fact was referring to an
inference of deception based on a "naked" goods-place association
which the Court found would not be sufficient to establish
Serial No. 77099522

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materiality. On the other hand, it has been consistently held,
as noted above, that a strong or heightened goods/place
association, which we have here, is sufficient to support a
finding of materiality.
Second, to the extent that applicant is arguing, as it did
at the oral hearing, that even assuming KUBA KUBA is perceived as
Cuba, evidence allowing the Board to draw an inference of
materiality is not sufficient and that direct evidence of public
deception is required, we do not agree. It is well settled that
evidence of what the relevant public understands a term to mean
may be shown not only by direct evidence, such as consumer
testimony and surveys, but it may also be inferred from indirect
or circumstantial evidence, such as gazetteer entries and third-
party websites, as we have in this case. See In re Merrill
Lynch, Pierce, Fenner and Smith Inc., 828 F.2d 1567, 4 USPQ2d
1141, 1143 (Fed. Cir. 1987). See also Bayer, supra (online
sources are probative of how a term would be perceived); In re
Reed Elsevier Properties Inc., 482 F.3d 1376, 82 USPQ2d 1378,
1381 (Fed. Cir. 2007) ("third-party websites are competent
sources to show what the relevant public would understand a term
to mean").
Further, we do not read the Court's decision in Spirits as
departing from the Court's longstanding precedent which has
permitted inferences of materiality to be drawn from the
Serial No. 77099522

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evidence, and serving as proof that a substantial portion of the
relevant public will be deceived.
In the Spirits case, the Court reversed the Board's finding
that MOSKOVSKAYA, translated as "from Moscow," was geographically
deceptively misdescriptive of vodka. The Board found that Moscow
was noted for vodka, and that Russian speakers who would
translate the mark as "from Moscow" would be deceived into
believing that the vodka came from Moscow. The problem in that
case was not with the Board's inference that Russian speakers
would be deceived. The problem concerned the Board's failure to
consider "whether Russian speakers were a 'substantial portion of
the intended audience'” for vodka. The Court noted that if the
relevant public is defined as the entire U.S. population
interested in purchasing vodka, then Russian speakers, which
comprise just a small fraction (0.25%) of the population, would
not "by any measure" constitute a substantial portion. The Court
did not say or suggest that the evidence must show that a
substantial portion of the relevant public would actually be
deceived, or that indirect evidence of consumer perception of the
mark, as we have in the present case, would not be sufficient.12

12 Indeed, as the Court in Spirits observed, "it may be that Russian
speakers are a greater percentage of the vodka-consuming public; that
some number of non-Russian speakers would understand the mark to
suggest that the vodka came from Moscow; and that these groups would
together be a substantial portion of the intended audience." Id., at
1496.
Serial No. 77099522

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The Federal Circuit's decision In re Pacer Tech., 338 F.3d
1348, 67 USPQ2d 1629, 1631 (Fed. Cir. 2003) is instructive on
this point. In discussing the Court's earlier decision in Loews,
supra, concerning whether the use of "Durango" for tobacco was
primarily geographically deceptively misdescriptive, the Court
stated (emphasis in Pacer):
We disagreed that the PTO, as part of its prima facie
case, must establish an actual goods/place
association. We reasoned that the PTO "does not have
means" to undertake the research, such as a marketing
survey, necessary to prove that the public would
actually make the goods/place association asserted.
We consequently required the PTO only to establish "a
reasonable predicate for its conclusion that the
public would be likely to make the particular
goods/place association on which it relies," and not
that the public would actually make the asserted
association. [Citations omitted.]

The same reasoning applies to the materiality element of the
Section 2(e)(3) test. In the present case, the evidence is
sufficient to establish a reasonable predicate that a substantial
portion of relevant consumers would understand that KUBA KUBA
refers to Cuba,13 and thus we may infer from the evidence showing
that Cuba is famous for cigars, that a substantial portion of

13 In the present case, although there is limited evidence of media or
public usage of "Kuba" as referring to Cuba, the similarity of KUBA to
Cuba with respect to sound, appearance and meaning is sufficient to
establish that KUBA would be recognized by most consumers as Cuba. See
Bayer, supra at 1832 ("the significant similarities in appearance and
meaning of ASPIRINA and aspirin [noting that both terms will be used in
association with the same analgesic goods] demonstrate that the Board's
finding that ASPIRINA is merely descriptive of analgesic goods is
supported by substantial evidence.")
Serial No. 77099522

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relevant consumers would be deceived.14 See In re Les Halles De
Paris J.V., 334 F.3d 1371, 67 USPQ2d 1539, 1541 (Fed. Cir. 2003)
("[f]or goods, the PTO may raise an inference in favor of
materiality with evidence that the place is famous as a source of
the goods at issue.").

14 In this regard, we note the District Court's ruling on appeal of the
Board's decision in Corporacion Habanos S.A. v. Guantanamera Cigars
Co., 86 USPQ2d 1473 (TTAB 2008). In that case, the Board sustained the
opposition, finding that GUANTANAMERA, a Spanish term meaning "of or
from Guantanamo, Cuba," was geographically deceptively misdescriptive
of cigars, and applicant filed an appeal to the U.S. District Court for
the District of Columbia (Guantanamera Cigar Co., v. Corporacion
Habanos, S.A., 729 F.Supp.2d 246, ____ USPQ2d ____ (2010) WL 3035750
(D.D.C. August 5, 2010)). The Court, in granting applicant's motion
for summary judgment, found that the Board erred as a matter of law in
applying the materiality requirement set forth in Spirits, which as the
Court noted was decided after the Board's decision issued. Opposer
contended, on appeal, that the "substantial proportion" requirement of
Spirits is met, arguing that there are millions of Spanish speakers in
the United States, that the English speaking public recognizes
"guantanamera" to mean Guantanamo, Cuba, and that applicant targeted
Spanish speaking consumers. However, the Court found that "this
evidence fails to determine that a substantial proportion of the target
audience would be deceived into purchasing the cigars because of the
false goods-place association" (emphasis in original), stating at one
point that "Spirits plainly demands more than a finding of Cuba's
reputation for high quality cigars." Id., slip op. at 9, 10.
Accordingly, the Court remanded the case to the Board to apply the
proper legal standard for materiality. We need not speculate as to the
District Court's requirements for proof of deception. Suffice it to
say that, at most, we read Spirits as requiring a showing that a
substantial portion of the relevant universe of consumers (however that
universe is defined), would recognize the meaning of a foreign language
term as denoting a geographic place. This showing would be sufficient
to permit an inference of deception if the place named by the foreign
language term is famous for the goods. In the present case, there is
no question that a substantial portion of relevant consumers would
recognize the meaning of KUBA KUBA as meaning Cuba; and the evidence
showing that Cuba is famous for cigars provides a reasonable predicate
for finding that a substantial portion of the relevant consumers would
be deceived.
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As a final matter, we note applicant's argument that even if
consumers view the term KUBA KUBA as related to Cuba, they would
not likely believe that the goods originate in Cuba because of
the U.S. embargo on Cuban products. That argument has been
previously considered and rejected by the Board. See In re Boyd
Gaming Corp., 57 USPQ2d 1944, 1946 (TTAB 2000) (noting that the
embargo provides no justification for registration); In re
Bacardi & Co. Ltd., 48 USPQ2d 1031, 1035 (TTAB 1997) ("regardless
of the existence of trade sanctions against Cuba, we have
determined that the marks herein would be subject to refusal
under Section 2(e)(2), if the identified goods are intended to
originate in HAVANA, or Section 2(e)(3), if the identified goods
are not intended to originate in HAVANA."). It is the perception
of the mark by the public which controls whether the mark is
primarily geographically deceptive, and applicant has offered no
evidence that the embargo on Cuban products would have any effect
on the perception of KUBA KUBA as a geographically deceptive
term.
Decision: In view of the foregoing, we find that the
evidence shows prima facie that the mark KUBA KUBA is primarily
geographically deceptively misdescriptive as applied to cigars,
and that applicant's evidence and arguments fail to rebut this
prima facie showing.
The refusal to register under Section 2(e)(3) is affirmed.