TTABlog Test: Is ECOTWEED Deceptive for "Footwear made of a Tweed-like Material"?

The USPTO refused to register the proposed mark ECOTWEED for "Footwear made of a tweed-like material," finding the mark to be deceptive under Section 2(a) or deceptively misdescriptive under Section 2(e)(1). Applicant argued that “the word ‘tweed’ has no globally accepted precise definition” and that, instead, it “is an evolving and imprecise term," and further that ECOTWEED is a coined term and consumers would not be deceived because the prefix "eco" causes the mark to mean "something else other than just 'tweed.'" The Board rendered a split decision. How do you think it came out? In re Twisted X, Inc., Serial No. 90002268 (March 6, 2025) [not precedential] (Opinion by Judge Robert Lavache; dissenting opinion by Judge Mark A. Thurmon).

Section 2(a): A proposed mark must be refused as deceptive if: (1) it consists of or comprises a term that misdescribes the character, quality, function, composition, or use of the goods; (2) prospective purchasers are likely to believe that the misdescription actually describes the goods; and (3) the misdescription is likely to affect the purchasing decision of a significant or substantial portion of relevant consumers. In re Budge Mfg. Co., 857 F.2d 773, 775 (Fed. Cir. 1988).

Dictionary definitions and Internet excerpts use the term “woolen” or “wool” to describe the material composition of “tweed.” Other evidence showed that consumers have been exposed to the word “tweed” used to describe a significant aspect of footwear.

Applicant's own evidence generally indicated that it is incorrect to refer to fabric that does not contain wool as “tweed." Moreover, the evidence did not establish that the term “tweed” is ambiguous or imprecise, "but that a misconception about the nature of tweed exists among some parties in the relevant marketplace."

Applicant admitted that its products do not contain tweed but are made from recycled plastic bottles. There was no evidence to convince the Board that "most consumers, even those aware that products may be made from recycled materials, would conclude that ECOTWEED refers to a tweed-like material made from recycled plastics. In fact, some evidence of record indicates that the term may be perceived as referring to actual tweed made from wool." [Does this make sense? - ed.]

Thus, we find that ECOTWEED is misdescriptive because it includes a term that is merely descriptive of a significant aspect of Applicant’s footwear that the footwear could plausibly possess but, in fact, does not.

The same evidence supported a finding that prospective purchasers are likely to believe that misdescription.

Finally, the evidence established that tweed purportedly possesses the attributes of durability, warmth, and weather resistance. "Any of these could be desirable characteristics that would matter to someone in the market for footwear." The Board therefore found that "the misdescription here is likely to affect the purchasing decision of a significant or substantial portion of relevant consumers."

All three prongs of the Section 2(a) test having been met, the Board found that ECOTWEED is deceptive of applicant's goods and it therefore affirmed the Section 2(a) refusal.

Section 2(e)(1): The test for deceptive misdescriptiveness is identical to the first two prongs of the Section 2(a) deceptiveness test. Since both prongs were satisfied, the Board affirmed this refusal as well.

Judge Mark A. Thurmon, in dissent, contended that the identification of goods should be read in its entirety, and therefore the consumer would know that the footwear was not made from tweed, but from "tweed-like material."

Consumers who are familiar with Applicant’s actual goods, will understand ECOTWEED as a tweed like fabric made from recycled water bottles. Those who know only what the identification discloses may not know the fabric is made from recycled water bottles, but given the evidence of various “tweeds” on the market, including synthetic tweeds (there is evidence of synthetic tweed footwear and synthetic tweed fabric in the record), these consumers will understand that “tweed like” means not tweed, but like tweed, in some respect. There is nothing misdescriptive here, let alone deceptive.

The panel majority responded:

[W]e conclude that even the most rational consumers who encounter shoes made of fabric resembling or characteristic of tweed being offered under Applicant’s proposed ECOTWEED mark may be deceived. In short, to side with the Dissent we would need to find either that (1) consumers somehow know the goods are imitation tweed or (2) the mark itself makes that clear. But, based on this record, we cannot and do not, find that either is true.

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TTABlogger comment: What do you think? Deceptive or not? If the goods were just "footwear," would that change your opinion?

Text Copyright John L. Welch 2025.