Deceptive

A mark that is deceptive is not registerable on either the Principal or Supplemental register.

A deceptive mark may be comprised of: (1) a single deceptive term; (2) a deceptive term embedded in a composite mark that includes additional non-deceptive wording and/or design elements.

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 1489 (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).