TMEP 1203.02(b): Elements of a §2(a) Deceptiveness Refusal

This is the October 2015 Edition of the TMEP

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1203.02(b)    Elements of a §2(a) Deceptiveness Refusal

The Court of Appeals for the Federal Circuit has articulated the following test for whether a mark consists of or comprises deceptive matter:

  • (1) Is the term misdescriptive of the character, quality, function, composition or use of the goods?
  • (2) If so, are prospective purchasers likely to believe that the misdescription actually describes the goods?
  • (3) If so, is the misdescription likely to affect a significant portion of the relevant consumers’ decision to purchase?

In re Spirits Int’l, N.V., 563 F.3d 1347, 90 USPQ2d 1589 (Fed. Cir. 2009); In re Budge Mfg. Co., 857 F.2d 773, 775, 8 USPQ2d 1259, 1260 (Fed. Cir. 1988), aff’g 8 USPQ2d 1790 (TTAB 1987).