Wednesday, September 16, 2015

Precedential No. 31: "THCTea" Deceptively Misdescriptive of Tea-Based Beverages, Says TTAB

In this tempest in a teapot, the Board affirmed a refusal to register the mark THCTea, in standard character form, for "tea-based beverages," deeming the mark to be deceptively misdescriptive of the goods under Section 2(e)(1). The Board found that tea-based beverages could contain THC, the chief intoxicant in marijuana, that THCTea is merely descriptive of tea-based beverages that contain THC, that applicant's goods (concededly) do not contain THC, and that consumers are likely to believe the misrepresentation made by the mark. In re Christopher C. Hinton, 116 USPQ2d 1051 (TTAB 2015) [precedential].


The test for deceptive misdescriptiveness under Section 2(e)(1) has two parts: (1) the mark must misdescribe the goods or services, and (2) consumers must believe the misdescription. [Unlike for a Section 2(a) deceptiveness refusal, the misdescription need not be material to the purchasing decision.]

The record evidence established that the term THC means either of two physiologically active isomers from hemp plant resin, especially one that is the chief intoxicant of marijuana. Examining Attorney Robert J. Struck introduced ample evidence to demonstrate that "it is plausible for tea-based beverages to contain THC," including online chatroom printouts discussing recipes for making such tea. Applicant Hinton admitted that the evidence established the significance of "THC" and showed that some individuals refer to tea made from marijuana as "THC tea."

The Board therefore found it plausible that tea-based beverages could contain THC, and that "THCTea" is merely descriptive of tea containing THC as a significant ingredient. Applicant admitted that his goods do not contain THC. Therefore, the Board concluded that "THCTea" misdescribes the goods.

The next question was whether reasonably prudent consumers are likely to believe the misrepresentation that applicant's beverages contain THC. Applicant Hinton contended that THC is intended to stand for "Tea Honey Care" of "the Honey Care Tea," pointing to two if his advertisements. But the Board observed that it must consider the mark as applied for, and it cannot assume that the mark will be accompanied by some additional wordings such as "Tea Honey Care." In fact, applicant's specimen of use (shown above) displayed the mark without any accompanying wording, and there was no evidence that consumers would interpret "THC" in the manner applicant contended.

Hinton maintained that consumers would know that marijuana is illegal under federal law, and that even in states having "medical marijuana" laws, use is strictly regulated. He asserted that only an uniformed, gullible consumer would believe that a bottle of THCTea available in a grocery store would contain an illegal substance.

The Board observed, however, that marijuana possession is considered legal in certain circumstances, under the law of nearly half the states. Furthermore, there was some evidence in the record that teas containing THC are commercially available for medicinal use. Nothing in the subject application restricts sales of applicant's products to states where marijuana is illegal, nor does the application indicate that the goods will not be offered through medical dispensaries.

And so the Board affirmed the Section 2(e)(1) refusal.

Read comments and post your comment here.

TTABlog comment: The Board also observed that "whether Applicant's products feature the intoxicant THC would be highly relevant to a consumer's purchasing decision." But it pointed out that the issue of Section 2(a) deceptiveness was not before it. Apparently the Board thought that a Section 2(a) refusal should have been made. What difference would it make? A deceptive mark is unregistrable, whereas a mark that is only deceptively misdescriptive is still eligible for registration under Section 2(f) via proof of acquired distinctiveness. So what will happen if Hinton files a new application claiming acquired distinctiveness?

Text Copyright John L. Welch 2015.

4 Comments:

At 9:56 AM, Anonymous Anonymous said...

Could it proceed on the Supplemental Register?

 
At 11:56 AM, Anonymous Anonymous said...

Why are consumers likely to think the trademark owner is selling an illegal product?

Shouldn't there be a presumption that they are not selling an illegal product and that consumers are law-abiding people who would not be deceived into thinking that the trademark owner is selling an illegal product?

 
At 4:47 PM, Anonymous Anonymous said...

If he refiles he will likely receive a different rejection and treatment inconsistent with regard to the first application, in my experience.

 
At 5:32 PM, Blogger John L. Welch said...

I think if he tries again, he'll get a 2(a) deceptiveness refusal.

 

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