TMEP 1203.02(d): Determining Materiality

This is the October 2015 Edition of the TMEP

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1203.02(d)    Determining Materiality

To establish a prima facie case of deceptiveness, the examining attorney must provide sufficient evidence that the misdescriptive quality or characteristic would be a material factor in the purchasing decision of a significant portion of the relevant consumers. To do so, the examining attorney must provide evidence that the misdescriptive quality or characteristic would make the product or service more appealing or desirable to prospective purchasers. In re White Jasmine LLC, 106 USPQ2d 1385, 1392 (TTAB 2013) (citing In re Juleigh Jeans Sportswear Inc., 24 USPQ2d 1694, 1698-99 (TTAB 1992)). A product or service is usually more desirable because of objective standards or criteria that provide an objective inducement to purchase the goods and/or services beyond that of mere personal preference.