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:
- Is the term misdescriptive of the character, quality, function, composition or use of the goods?
- If so, are prospective purchasers likely to believe that the misdescription actually describes the goods?
- 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).