Earlier this year it was reported that Meghan Markle, The Duchess of Sussex, was launching a new lifestyle brand “American Riviera Orchard”. The brand’s Instagram site announces the brand was established by Meghan, The Duchess of Sussex in 2024. There has reportedly been a soft launch with jars of jam being shared with friends and influencers.
Recently the press has been awash with reports that the brand has suffered a major setback in its attempts to register “American Riviera Orchard” as a trade mark at the USPTO. We have looked at what lies behind these stories.
Mama Knows Best, LLC, with an address in Beverly Hills, filed three trade mark applications at the USPTO in 2024. An initial application was filed in February for AMERICAN RIVIERA ORCHARD as a standard character mark covering goods and services in 8 classes. A month later, a second US trade mark application was filed for the same standard character mark in 14 classes, along with an application in 17 classes for a mark combining these words in a stylised script with a device.
The applications cover a range of homewares, tableware, table linen, recipe books, e-books, printed matter, stationery, bags, clothing, jams, coffee, tea, condiments and related retail services. The applications are based on an intention to use the mark in the US.
In each application, a non-final Office Action was issued at the end of August setting a 3-month period for filing a response. These set out some initial objections following a review of the applications by an Examiner at the USPTO.
On a positive note, each of the Office Actions states that the Examiner has not found any conflicting marks that would bar registration. Whilst this does not necessarily mean the trade mark applications will not be opposed by other interested parties having earlier rights (if any), it will be encouraging for the applicant that the Examiner has not cited any prior marks as obstacles to registration.
All of the applications have encountered objections that certain terms in the identification of goods and services are indefinite or too broad. These types of objections are extremely common in US trade mark applications and they will be easily dealt with by specifying the relevant terms more precisely.
What is of potentially more concern to the applicant is the fact that both of the word mark applications have encountered a partial refusal on the basis that the mark applied for is primarily geographically descriptive of the origin of the applicant’s goods and services in classes 29 and 35. This objection only applies to these two classes, which cover goods such as jams, fruit preserves, dried fruits and vegetables, nut and vegetable based spreads, edible oils and butters, kits comprised of ingredients, and retail store (including online retail store) services.
The Examiner considers the primary significance of the mark AMERICAN RIVIERA to the purchasing public for goods and services in these classes is a generally known location, that the applicant’s goods/services originate in the place identified in the mark, and the public would be likely to believe the goods/services originate in that place.
More specifically, the Examiner asserts that “AMERICAN RIVIERA” is a common nickname for Santa Barbara, California and has cited “evidence” that the applicant’s address is located near the geographic location. The evidence includes an extract from Google maps showing that Santa Barbara is less than a 2-hour drive from the Beverly Hills address of the applicant, Mama Knows Best, LLC. The Examiner has also annexed an article in Elle magazine which offers as an explanation for the origin of the brand that American Riviera describes the Santa Barbara area where Meghan Markle lives with her husband Prince Harry. It remains to be seen whether the applicant will attempt to argue that the applicant is Mama Knows Best, LLC and that their location, Beverly Hills, is not part of any place known as the “American Riviera”.
A more promising line of argument might be that the mark is not simply AMERICAN RIVIERA, but also includes the word ORCHARD, and that this may be enough to elevate the mark beyond a term that is simply descriptive. The Examiner’s current position is that ORCHARD means an area of land where fruit trees are grown, but the addition of a generic or highly descriptive wording does not diminish the primary geographic significance.
Even if the applicant is not successful in overcoming the objection that primary significance of the mark is as a geographical description, this objection only applies to 2 out of 17 classes. Even in these two classes, the applicant might be able to argue to retain some of the goods and most of the services. For example, the word ORCHARD does not seem apt to describe any characteristic of butters and dairy-based spreads, or retail store services in the fields of homewares.
The applicant has wisely filed an application for a combined word and device mark alongside the word mark applications, which is not subject to the same partial refusal in classes 29 and 35.
In all three applications the Examiner requires the applicant to enter a disclaimer of the exclusive right to use “AMERICAN RIVIERA” apart from in the mark as a whole. The rationale is to leave geographic names free for all businesses operating in the same area to inform customers where their goods or services originate. This would limit the applicant’s ability to enforce resulting registrations against other parties seeking to use “American Riviera”, except in a form where the other party’s mark as a whole is likely to be confused with AMERICAN RIVIERA ORCHARD.
A similar disclaimer requirement was requested by the USPTO in the recent past in an application incorporating the words AMERICAN RIVIERA for wines. However, there have also been a number of other previous applications for marks incorporating this phrase where a disclaimer has not been required, such as AMERICAN RIVIERA for perfumery and AMERICAN RIVIERA BANK for savings account services. A geographical objection was also not raised against two previous applications for THE AMERICAN RIVIERA covering clothing and tote bags, though these did not proceed for other reasons. This history may give the applicant some hope that the disclaimer requirement can be avoided at least for goods such as homewares which do not have a direct connection to natural produce.
Less promisingly from the applicant’s point of view, it seems the register is already quite crowded with previous attempts to register AMERICAN RIVIERA marks, which could make things interesting when the applications come to be published for opposition purposes.