OPINION
Bergsman, Administrative Trademark Judge:
SF
Investments, Inc. (Applicant) seeks registration on the
Principal Register of the mark SMITHFIELD, in standard
characters, for "meat, lard, offals," in Class
29.[1]
Applicant
claimed that its mark SMITHFIELD has acquired distinctiveness
in connection with "hams processed, treated, smoked,
aged, cured by the long-cure, dry salt method of cure and
aged for a minimum period of six months, such six month
period to commence when the green pork cut is first
introduced to dry salt, all such salting, processing,
treating, smoking, curing, and aging to be done within the
corporate limits of the town of Smithfield,
Virginia."[2]
Applicant
also claimed ownership of the registered marks listed
below:[3]
1. Registration No. 2624764 for the mark SMITHFIELD, in typed
drawing form, for "meat, excluding hams processed,
treated, smoked, aged, cured by the long-cure, dry salt
method of cure and aged for a minimum period of six months,
such six month period to commence when the green pork cut is
first introduced to dry salt, all such salting, processing,
treating, smoking, curing, and aging to be done within the
corporate limits of the town of Smithfield,
Virginia."[4] The mark was registered under the
provisions of Section 2(f) of the Trademark Act, 15 U.S.C.
§ 1052(f), claiming that SMITHFIELD has acquired
distinctiveness in connection with meat excluding specially
processed ham.
2. Registration No. 2989997 for the mark SMITHFIELD, in
stylized form reproduced below, for a "house mark for a
full line of meat, excluding hams processed, treated, smoked,
aged, cured by the long-cure, dry salt method of cure and
aged for a minimum period of six months, such six month
period to commence when the green pork cut is first
introduced to dry salt, all such salting, processing,
treating, smoking, curing, and aging to be done within the
corporate limits of the town of Smithfield,
Virginia."[5]
SMITHFIELD
The mark was registered under the provisions of Section 2(f)
of the Trademark Act, 15 U.S.C. § 1052(f), claiming that
SMITHFIELD has acquired distinctiveness in connection with a
full line of meat excluding specially processed ham.
3. Registration No. 4467457 for the mark SMITHFIELD and
design, reproduced below, for "pork."[6]
SMITHFIELD
The
description of the mark provides that
Color is not claimed as a feature of the mark. The mark
consists of a pig with wings flying over
"SMITHFIELD" in a stylized font with a crescent on
the left of the pig and "SMITHFIELD".
Applicant
claimed acquired distinctiveness as to
"Smithfield."
The
Examining Attorney refused to register SMITHFIELD for
"meats, lard, offals" under Section 2(e)(2) of the
Trademark Act, 15 U.S.C. § 1052(e)(2), on the ground
that SMITHFIELD is primarily geographically descriptive of
Applicant's goods.
Applicant
contends that SMITHFIELD is not primarily geographically
descriptive. Specifically, Applicant argues that "the
Examining Attorney failed to: (1) properly define the class
of relevant consumers; (2) show that 'Smithfield' is
'generally known' to the relevant American public as
a town in Virginia; and (3) show that purchasers would be
likely to believe that the goods originate in the geographic
place identified in the mark."[7]
At the
outset, we find it helpful to define the products referred to
in the descriptions of goods in Applicant's application
and prior registrations. "Meat" is defined as,
inter alia, "the flesh of animals used for
food."[8]
"Lard"
is defined as "a soft white solid or semisolid fat
obtained by rendering fatty pork."[9]
"Offals"
is defined, inter alia, as "meat, including internal
organs (such as liver, heart, or kidney) and extremities
(such as tail or hooves), that has been taken from a part
other than skeletal muscles. Also called variety
meat."[10]
"Ham"
is defined, inter alia, as "a cut of meat from the
heavy-muscled part of a hog's rear quarter, between hip
and hock, usually cured."[11]
"Pork"
is defined as "the flesh of hogs used as
food."[12]
A twist
in this case is that although the description of goods for
the application at issue is "meat, lard, offals,"
Applicant claimed that SMITHFIELD has acquired
distinctiveness as applied to "hams processed, treated,
smoked, aged, cured by the long-cure, dry salt method of cure
and aged for a minimum period of six months, such six month
period to commence when the green pork cut is first
introduced to dry salt, all such salting, processing,
treating, smoking, curing, and aging to be done within the
corporate limits of the town of Smithfield, Virginia"
(hereafter "specially processed hams from Smithfield,
Virginia") but is inherently distinctive as to all other
goods encompassed by the identification. At the oral hearing,
both Applicant's counsel and the Examining Attorney
agreed that for purposes of analyzing the Section 2(e)(2)
primarily geographically descriptive refusal, the goods at
issue should be interpreted as meat (including ham except
specially processed ham from Smithfield, Virginia), lard, and
offal. We agree because it is a logical way to incorporate
the partial claim of acquired distinctiveness into the
analysis of whether SMITHFIELD is primarily geographically
descriptive inasmuch as it focuses the analysis on
Smithfield, Virginia and meats other than specially processed
ham from Smithfield, Virginia.
The
following evidence has been made of record:
1. The
Columbia Gazetteer of the World (columbiagazetteer.org) lists
Smithfield as a town in Virginia that processes meat
("Manufacturing (meat processing)").[13]
2. Food
Encyclopedia (foodterms.com)
SMITHFIELD HAM
Considered by many to be the premier country-cured ham
… To be accorded the appellation of
"Smithfield," the hams must be cured and processed
in the area of Smithfield, Virginia.[14]
3.
Oxford Dictionaries (oxforddictionaries.com)
Smithfield ham
A dry-cured ham produced near Smithfield, Virginia, from hogs
that have fed on hickory nuts, acorns, and
peanuts.[15]
4.
Wikipedia entry for Smithfield Ham
Smithfield ham is a specific form of country ham finish-cured
in the town of Smithfield in the Isle of Wight County in the
Hampton Roads region of Virginia.[16]
5.
Wikipedia entry for Smithfield, Virginia
Smithfield is a town in Isle of Wight County, in the South
Hamptons Roads subregion of the Hampton Roads region of
Virginia in the United States. …
The town is most famous for the curing and production of
Smithfield ham. … [Applicant], based in Smithfield
raises 12 million hogs and processes 20 million pounds of
them annually.
* * *
Known as the ham capital of the world, Smithfield currently
attracts many tourists. Smithfield's Historic District is
a major attraction, with more than 70 contributing properties
from the Colonial, Federal, and Victorian
periods.[17]
6.
Smithfield Foods Inc. 10-K Report (January 3, 2016) stating
that Applicant spent $211 million in advertising, generating
sales of $14.4 billion.[18]Applicant also states that it has
"become the largest pork processor and hog producer in
the world" producing and marketing "a wide variety
of fresh meat and packaged meat products both domestically
and internationally."[19]In addition, Applicant states
that its Smithfield, Virginia processing plant is part of its
"Fresh Pork and Packaged Meats" segment
encompassing "slaughtering and cutting hogs; fresh and
packaged pork products."[20]
7.
Applicant's website (smithfieldfoods.com) stating that
Applicant is the largest pork processor and hog producer in
the world.[21] "Based in Smithfield, Virginia
… [Applicant is] the leader in numerous packaged meats
categories."[22] Further, Applicant states that
"[t]he town of Smithfield's reputation for producing
specialty hams and meats dated back to the late
1700s."[23]
8.
Washington Post article (July 20, 2018)
A sad day in Hamtown: Smithfield Foods close the one
smokehouse making genuine Smithfield ham
SMITHFIELD, Va. - The local charity run is the Hog Jog.
…
You could say that Smithfield is a little obsessed with pork
products, but that would understate how deeply hogs are woven
into the history and life of this town of about 8, 300 on a
hill over the Pagan River. So it has come as a shock that
Smithfield Foods is shuttering the last smokehouse that
produces the area's signature product, the genuine
Smithfield ham.
* * *
The salty, long-cured ham has been an area staple since the
English colonists and their hogs arrived at nearby Jamestown
in the early 1600s. There is a whole section of the Virginia
State Code - Title 3.2, Chapter 54, Article 4 - entitled
"Smithfield Hams."[24] Just as the French define
Champagne and the European Union protects Greek Feta cheese,
the Virginia law dictates that genuine Smithfield ham is
cured in Smithfield.
"Anybody can make a ham," said Jennifer England,
Director of the local museum, where pig fanciers can keep
tabs on a ham cured in 1902 via the online "Ham
Cam." "But a Smithfield ham can only come from
within the town itself."
* * *
The huge meatpacking plants on the edge of town slaughter
more than 10, 000 hogs per day.
* * *
"The tourists come in looking for it specifically,"
said Leigh Abbott, general manager of the Smithfield Inn,
which dates to 1752.[25]
9.
Yelp! (yelp.com) review for the Taste of...
