Friday, September 08, 2023

TTAB Deems "THE OFFICIAL WEBSITE OF JEKYLL ISLAND" Deceptive for Promoting Tourism and Recreation

The Board granted a petition for cancellation of a registration for the mark THE OFFICIAL WEBSITE OF JEKYLL ISLAND for various tourism-related services, finding the mark to be deceptive under Section 2(a). Respondent, appearing pro se, admitted that use of the word OFFICIAL in its mark "suggests to consumers that the services Respondent provides via its website are the authority on [] Jekyll Island or come from an ‘official’ source related to Jekyll Island." From there, it was all downhill. Jekyll Island-State Park Authority v. Stratatomic LLC, Cancellation No. 92074348 (September 5, 2023) [not precedential] (Opinion by Judge Mark Lebow).

Jekyll Island is a barrier island off the southeastern coast of Georgia that has been owned by the State of Georgia since 1947.” Respondent admitted that it "is not affiliated with the State of Georgia or [Petitioner]." Petitioner and Respondent operate competing websites that market to visitors of Jekyll Island.”

A mark is deceptive under Section 2(a):

  • If it misdescribes the character, quality, function, composition or use of the goods or services.
  • If prospective purchasers likely to believe that the misdescription actually describes the goods or services.
  • And if the misdescription likely to affect the decision to purchase.

A mark need not misdescribe all of the services identified in aregistration to find it misdescriptive. It is sufficient if the term misdescribes any of the identified services. Here, the Board focused on whether the term “official” in Respondent’s mark is misdescriptive of Respondent’s identified services of promoting tourism and recreation in Jekyll Island, as well as its variously identified services of promoting tourism, business, travel, tourism, and conventions in the area.

The Board found that the term “OFFICIAL” in Respondent’s mark "misdescribes the character of its website services because it connotes that such services are provided with official permission and/or are approved by the government or by someone in authority such as by Petitioner, 'a legislatively-created state authority to oversee and manage Jekyll Island, a state park,' when in fact they are not."

Several third-party declarations convinced the Board that prospective purchasers are likely to be the believe the misdescription in Respondent’s mark.

And finally, the proposed "suggests that Respondent’s website has the seal of government approval and thus may have accurate information (whether that, in fact, is true)." The Board therefore found that the misdescription in the mark "is likely to affect the purchasing decision of consumers to use Respondent’s website services."

And so, the Board affirmed the refusal.

Read comments and post your comment here.

TTABlogger comment: FWIW: I've never been there.

Text Copyright John L. Welch 2023.


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