Friday, May 06, 2022

TTABlog Test: Is AUBURN Deceptively Misdescriptive of Faucets?

The USPTO refused to register the proposed mark AUBURN for "Plumbing products, namely, faucets," finding the mark to be deceptively misdescriptive of the goods under Section 2(e)(1). The examining attorney contended that third parties use the auburn color on their plumbing faucets and so consumers would falsely believe that applicant’s faucets are in the color auburn. The applicant argued that "auburn" has other meanings, and that consumers would not believe its faucets were auburn colored.  How do you think this appeal came out? In re Delta Faucet Company, Serial No. 88814907 (May 4, 2022) [not precedential] (Opinoin by Judge George C. Pologeorgis).

The test for deceptive misdescriptiveness under Section 2(e)(1) has two parts: (1) the matter sought to be registered must misdescribe the goods or services; and (2) consumers must be likely to believe the misrepresentation.

Applicant argued that, although "auburn" is the name of a color, it is also the name of a well known university and city in Alabama, and no one would believe that an arbitrary faucet collection would be associated with those meanings. Nor would a consumer seek out an "auburn" colored faucet.

The Board found that the term "auburn" is "plausibly merely descriptive" of applicant’s goods, namely, the color or finish of the faucets. However, nothing in the Internet evidence described the color or finish of any faucets as "auburn." "Instead, the faucets appear in 'oil rubbed bronze,' 'copper reddish brown ,' or 'reddish brown.'" Therefore, the evidence did not show "that the consuming public has been accustomed or exposed to seeing faucets for sale."

[T]he evidence submitted by the Examining Attorney does not establish that the term auburn indicates any particular characteristic of this nature. On this record, we do not believe reasonably prudent purchasers are apt to be deceived.

And so, the Board reversed the refusal.

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TTABlogger comment: I think the other meanings of "auburn" were more significant than the lack of evidence of auburn-colored faucets.

Text Copyright John L. Welch 2022.


At 8:28 AM, Blogger Miriam Richter, Esq. said...

But what about the fact that the color of the goods is obvious to the consumer when they buy it and that color/finish is a major factor in deciding what faucet to buy?

At 4:23 PM, Blogger John L. Welch said...

The Board addressed that issue in the CLEAR CASE:

The Board rejected Dolce Vita's argument that consumers are unlikely to believe the misrepresentation because they will visually inspect the goods before purchase.

*** not all consumers will have the opportunity to visually inspect the goods:


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