News broke today and began to spread quickly that Meghan Markle, the Duchess of Sussex and wife to Prince Harry is launching a new brand: American Riviera Orchard™️.
Meghan has demonstrated the ability to build an exciting, beautiful and impactful lifestyle brand, starting with her blog, The Tig, which was named after her favorite wine varietal, Tignanello. Despite a well-established, gorgeous, and well-loved brand and blog, she opted to shutter it when she married Prince Harry, much to the disappointment of her many devoted readers and fans. So the buzz around this new brand, complete with the launch of a new Instagram account, has her loyal fans and followers atwitter (pun intended, because she is also on Twitter - er.. X, where she also launched a new account for this new brand).
So what can we glean about what her plans are? You can always learn so much from reading a trademark application, which is one of my favorite activities. It appears that her new brand will provide:
Tableware, namely, knives, forks, and spoons; table cutlery;
Downloadable cookbooks and recipe books;
Printed cookbooks and recipe books;
Coffee services in the nature of tableware; tea services in the nature of tableware; servingware for serving food and drinks; decanters; dinnerware; chargers being dinnerware; napkin rings; table place card holders not of precious metal; beverageware;
Textile tablecloths; textile placemats; textile napkins; kitchen linens; table linen of textile; gift wrap of fabric;
Jellies, jams; marmalades; fruit preserves; edible oils and fats, and preserves; Vegetable-based spreads; Legume-based spreads; Nut-based spreads; Garlic-based spreads; Sesame-based spreads; Dairy-based spreads; Nut butters; Fruit butters;
Retail store services featuring foods, books, tableware and tablescape goods, table linens, and servingware; online retail store services featuring food and beverages, books, tableware and tablescape goods, table linens, and servingware;
Online non-downloadable e-books in the field of cookbooks and recipe books.
It looks very much like Meghan is about to launch a new lifestyle brand, maybe one that is a mix between her former blog The Tig, Williams Sonoma and Dean & Deluca, if I had to guess. Her trademark application has a mix of goods (products) and services. Her new company (Mama Knows Best, LLC) will be selling its own branded products, like silverware, glasses and dishes, table decor, linens, cookbooks, fabric gift wrapping, and food products like olive oil, healthy and savory spreads, jellies and jams. It will also have a website that serves as a retail store, and will sell likely those goods, and possibly goods from other brands. There will also be an online recipe element to the website, like The Tig had, or also similar to Food.com.
She filed her mark under what is called an Intent to Use, which means that her new company is not offering any goods or services for sale yet, but it plans to do so in the near future (technically, under an Intent to Use application, if approved, a company has up to 3 years to launch the goods and services listed in the application). So these offerings might not all be offered immediately. Some might launch soon, and others might be future plans for later down the road.
Once she starts selling any or all of the products listed above, or once the retail site is live, her lawyer will file a Statement of Use, which asserts to the USPTO that the company is now offering those goods or services "in US commerce" (i.e. across state lines - meaning selling to customers in more than one state) with the brand "affixed," either on the products themselves, the packaging or on the website in the form of a logo, usually. That is what qualifies a mark for federal registration in this country (use of the mark in the sale of goods or services across state lines, or "in commerce"). To prove Meghan is using the mark "in commerce," her lawyer will file photos of the specific categories of goods with the mark on the products. For food products, that usually means on the label that is on the jar or bottle or bag. For home and kitchen goods, the mark might be actually affixed to the products (via embossing, labels, etching or stamping, for example) or on the packaging (a hang tag, the box the products come in, etc...). For the retail services, the proof of "use in commerce" will come in the form of screenshots of the website, once the listed goods can be purchased on that site.
So what happens next? In the trademark space, the USPTO is extremely backed up (it has been really since COVID), and so it will be August or September 2024 before the USPTO even assigns the American Riviera Orchard application to one of its Examining Attorneys. Once that happens, we should see a response to the application within a couple of weeks. Assuming the mark is approved for federal registration, it will then have to go through a 30-day, public publication period. After that, assuming no oppositions are filed against the mark's registration, it will register, although it usually takes another month or two after the close of the publication period before registration is issued by the USPTO. So the registration (if granted) could be official as early as November or December, or possibly January 2025. If there are issues with the application, like if the USPTO Examining Attorney assigned to the application refuses registration on the basis of "likelihood of confusion" with an existing registered mark, or on the basis of the mark being at least partly "geographically descriptive" (that is possible in this case, in my opinion), then the process is more drawn out and it could be later in 2025 before they have a final decision from the USPTO.
Now, if it isn't already clear, I am a big fan of Meghan's (and Harry's). I am excited for their many ventures, their entrepreneurial and philanthropic spirit, and their perpetually positive approach to life, despite all the hate and criticism they have endured. That said, I am also an experienced trademark lawyer, and so need to weigh in on the substance of their mark and their trademark application. So here goes...
If I were a betting woman, I would guess they will get a refusal (in the form of an "Office Action") on the basis that the mark is partially geographically descriptive.
A geographically descriptive mark is one that (1) is the name of a place that is generally known to the public, (2) the public would make a goods/place association in that it would believe that the involved goods originate in that place, and (3) the involved goods come from that place. American Riviera Orchard likely satisfies all three factors.
The phrase "American Riviera" is a well-known phrase used to identify Santa Barbara, California, due to its similar climate and terrain to the Mediterranean coast in Europe, and its stellar reputation for great wine. And unless you have been living under a rock, it is obvious that Meghan's company is based in the Santa Barbara area (in fact, see the image on her website and Instagram - below) that states clearly that it is located in Montecito. And even if the goods themselves are not made in that area, it is likely that consumers will see the association between the brand and the geographic location. As a result, I think they will get a refusal. The likely only way around that will be to agree to "disclaim" the entire mark, which means they won't really own the phrase exclusively (disclaiming is a statement you make to the USPTO that "the applicant does not claim any exclusive rights to the disclaimed portion of the mark"). In other words, Meghan's new company will not be able to own exclusively any part of the mark that is disclaimed. It pretty much will defeat the purpose of applying for trademark registration in the first place.
I'm curious why Meghan and her team chose this name, given the fact that they are indeed risking a refusal for being geographically descriptive. Other "American Riviera" marks have been rejected for registration by the USPTO on this basis, so it is a predictable outcome for this application too, despite the fame of the owner of the mark. I would not have advised Meghan to use this mark, if she had been my client. It is a risky move, especially considering the fact that they had to have known that the brand would take off in a viral way the moment it was announced. If they can't get the trademark, they will have to rebrand in a year, which could involve not just rebranding the website and social media accounts, but inventory and other hard assets that will be expensive to replace. It will be an interesting case to watch as a trademark lawyer.
Regardless of what happens with her trademark application, it will be exciting to see what The Duchess of Sussex reveals next about this exciting new venture. I personally think we are witnessing the genesis of the next self-made billionaire woman entrepreneur, which I personally love to see. Keep an eye on this space, as I will share updates about the trademark and new brand as they are revealed/released. If you want to take a peek at her new website, you can find that here: https://americanriviera.com/