TTAB Affirms 2(a) and 2(e)(1) Refusals of GREEN SEAL for Non-Environmentally-Friendly Adhesive Tape
The Board affirmed two refusals of the mark GREEN SEAL for "adhesive tape and adhesive packaging tape and tape dispensers for home and office use," finding the mark to be deceptive under Section 2(a) and deceptively misdescriptive under Section 2(e)(1). Applicant Kitaru pointed out that it uses the term "Green Seal" to color code a line of adhesive tape products that also includes "Black Seal," "Blue Seal" and "Double Blue Seal," and further that it uses this term in connection with the imagery of a sea mammal (see below). But those arguments didn't stick. In re Kitaru Innovations Inc., Serial No. 85211019 (March 26, 2013) [not precedential].
Section 2(e)(1) Deceptive Misdescriptiveness: A mark is deceptively misdescriptiveness if it misdescribes the goods, and if consumers are likely to believe the misrepresentation. The Examining Attorney submitted dictionary definitions, Internet pages, and third-party registrations to support the contention that the word “green” is used frequently to refer to environmentally-friendly tape products. The Board found that the record evidence showed "overwhelmingly" that the word “green” directly informs consumers that the tape products are environmentally friendly.
Applicant made no such claim for its products, but instead asserted that it uses the term "Green Seal" to color code a line of adhesives, using the imagery of a sea mammal. But whether Applicant also uses "Black Seal," "Blue Seal" and "Double Blue Seal" function as trademarks was not the issue before the Board. The mark GREEN SEAL must stand on its own. Likewise, the image of a seal is not part of the applied-for mark. [There is nothing stopping Applicant from dropping the "color code" and removing the seal as soon as the mark is registered - ed.].
Furthermore, the Board concluded, purchasers and prospective purchasers would likely believe the misrepresentation conveyed by the term: that applicant’s goods are environmentally-friendly.
Therefore the Board affirmed the Section 2(e)(1) refusal.
Section 2(a) Deceptiveness: The CAFC has articulated the following test for determining 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?; and (3) If so, is the misdescription likely to affect a significant portion of the relevant consumer’s decision to purchase?
The first two elements were satisfied as discussed above. The question, then, was whether the misdescription is material to the purchasing decision. The evidence showed that consumers are eager to recycle as well as to purchase products made of recycled materials, to use biodegradable products, and to avoid toxic substances, and further that a segment of the public would be more inclined to purchase eco-friendly adhesive products. In short, whether an adhesive product is environmentally friendly or green would be material to the purchasing decision.
And so the Board affirmed the Section 2(a) refusal.
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Text Copyright John L. Welch 2013.