TTABlog Test: Is LEATHER MAN LTD & Design Deceptive for Belts Not Made of Leather?

Invoking Section 2(a) of the Trademark Act, the USPTO refused to register the mark shown below, finding it deceptive for the following goods not comprised of leather: Belts; Belts for clothing; Belts made out of cloth; Belts of textile; Fabric belts; Waist belts. Applicant argued that the words "LEATHER MAN" would be perceived as referring to the “old Leather [M]an, … a vagabond [who] was famous for the leather suit of clothes he wore.” At the end of the 19th Century, the Leather Man meandered around the Essex, Connecticut area, "where he would have food and necessities ready for him upon his arrival." How do you think this appeal came out? In re Brockway Ferry Corp DBA Leather Man Ltd., Serial No. 90127025 (September 3, 2024) [not precedential] (Opinion by Judge Angela Lykos).

The test for determining whether a mark is deceptive under Section 2(a) sets forth three requirements: (1) Does the mark consist of or comprise a term that misdescribes the character, quality, function, composition, or use of the goods? (2) Are prospective purchasers likely to believe that the misdescription actually describes the goods? and (3) Is the misdescription likely to affect the purchasing decision of a significant or substantial portion of relevant consumers?

The USPTO's refusal hinged on the inclusion of the single word “Leather” in Applicant’s mark. The Board noted that, although “Leather” might be misdescriptive of the items in Applicant’s identification not made of leather, the meaning of the term must be viewed in the context of the mark in its entirety.

When we consider the mark as a whole, the term “Leather” does not take on its ordinary meaning, but rather is used to evoke the imagery of the legend of the Leather Man indigenous to the Essex region of Connecticut. In other words, the “[m]isdescriptiveness of [the word leather] [is] negated by its meaning in the context of the whole mark” because the combination of “Leather Man,” along with the geographic location of “Essex, CT” and a sailing motif creates an entirely different “unitary impression.”

The Board asserted that the examining attorney improperly considered the word “Leather” out of context. According to the Board, the mark "conveys the impression of a person, not a product component, by combining the words 'Leather' and 'Man.'" It therefore found that “Leather” in Applicant’s mark is not deceptively misdescriptive, and the proposed mark, taken as a whole, is not deceptive under Section 2(a). 

And so, the Board reversed the refusal.

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TTABlogger comment: What the . . . ? What does the depiction of a sailing ship have to do with the Leather Man? What percentage of the US population ever heard of the "Leather Man" legend? Even if a few current denizens of Essex, Connecticut might be acquainted with the legend, what about the vast majority of consumers who would expect applicant's goods to be made of leather?

Text Copyright John L. Welch 2024.