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Archived updates for Tuesday, March 18, 2008

GUATANAMERA Geographically Misdescriptive for Cigars

In Corporacion Habanos, S.A. v. Guantanamera Cigars Co., Opposition No. 91152248 (February 29, 2008), the U.S. Trademark trial and Appeal Board sustained an opposition to registration of that mark"GUANTANAMERA" for cigars on the ground that it is primarily geographically deceptively misdescriptive under Section 2(e)(3). As noted by John Welch at the TTABlog, "the Board distinguishe[d] between three groups of U.S. consumers: those of Cuban extraction (who would recognize the Cuban idioms); Spanish-speaking consumers (who would understand the lyrics of the song as referring to Guantanamo); and others (who, like me, would think only of the song without realizing that it had anything to do with Guantanamo, Cuba)."


According to the Board,

Despite this evidence, we are not persuaded that the consuming public would recognize the primary meaning of the mark in the context of applicant's goods as the song “Guantanamera.” First, evidence that the song was a hit fifty years ago, was sung by a folk singer from another era or was sung in one scene in a movie is of minor probative value regarding the notoriety of the song today. Second, even if the song is well known in the United States, one of the refrains in the song includes the phrase “guajira guantanamera,” which means “a country girl from Guantanamo.” See Lema Diccionario De La Lengua Espanola, opposer's notice of reliance ex. 21. Thus, even if
consumers consider the mark as referring to the song by the same name, such consumers, who know the song and who know Spanish, will know of the geographic significance of “Guantanamera” from the song’s lyrics. We agree with opposer that the song actually reinforces the primary significance of “guantanamera” as a generally known geographic location. Brief at p. 30. Third, Professor Gonzales’ statement quoted above regarding the American public’s knowledge of the word “Guantanamera” actually supports opposer’s position, at least for those who know
Spanish; Professor Gonzales also testified that “[i]n the song, ‘Guantanamera’ refers to a girl from Guantanamo.” Opposer's notice of reliance ex. 1 at ¶ 10. Fourth,
applicant's goods are cigars, and the record reflects that tobacco and cigars from certain countries, such as Cuba, are more highly regarded than tobacco and cigars from other countries. From this, we can infer that U.S. consumers of cigars, even those who know that Cuban goods cannot be sold in the United States due to the U.S. embargo on Cuban goods, will have a heightened awareness of terms which have a plausible geographic meaning. In the context of applicant's goods, consumers will ascribe the geographic meaning to the mark rather than, as applicant suggests,
associate the mark with the title of a Spanish language folk song.

[FOOTNOTE 7: As to such consumers, they will know of Cuban cigars due toarticles about Cuban cigars in U.S. magazines such as Smoke magazine, Morejon ex. 10; and U.S. books such as Shanken’s Cigar Handbook, A Connoisseur’s Guide to Smoking Pleasure (1997) (“Cuba has a long tradition as the source of the best cigar tobacco …
Cuban cigar tobacco is still acknowledged by many as setting the standard that the rest of the world follows”), opposer's notice of reliance ex. 40. They will also know about Cuban cigars through their travels to foreign countries where Cuban cigars are
available for sale.]

In the context of applicant's goods, consumers will ascribe the geographic meaning to the mark rather than, as applicant suggests, associate the mark with the title of a Spanish language folk song.

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3 Comments:

Anonymous Anonymous said...

Is "cigar" a feminine noun in Spanish? If not, then calling a cigar "Guantanemera" is not saying it's a cigar from Guantanamo. It's more like calling your beer "St. Pauli Girl". It's not "St. Pauli Beer".

April 03, 2008 2:39 PM  
Anonymous vanessa said...

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January 10, 2009 5:04 AM  
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April 06, 2009 11:39 PM  

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