TTAB Finds "4:20" Deceptively Misdescriptive of Tobacco and Cigarette-Related Products Not Containing or Used With Cannabis

The Board upheld a Section 2(e)(1) refusal to register the proposed mark 4:20, finding it deceptively misdescriptive of "tobacco; cigarette papers; cigarette filters; cigarette tubes; cigarette rolling machines; handheld machines for injecting tobacco into cigarette tubes; machines allowing smokers to make cigarettes by themselves; none of the foregoing containing or for use with cannabis." (emphasis added). The Board found that cannabis users are familiar with the term 420 and variants, including the proposed mark 4:20, as describing cannabis, its use, and related paraphernalia, and that consumers would believe that applicant's products "could contain or could be for use with cannabis." In re Republic Technologies (NA) LLC, Serial No. 90053762 (December 7, 2023) [not precedential] (Opinion by Cindy B. Greenbaum).

A mark is deceptively misdescriptive under Section 2(e)(1) if (1) the term misdescribes a quality, feature, function, or characteristic of the goods or services with which it is used; and (2) consumers would be likely to believe the misrepresentation.

Examining Attorney Robert J. Struck submitted an entry from Dictionary.com defined 4:20 as "a slang term for marijuana/cannabis." There was no evidence that the term has any other established meaning. He also introduced Internet evidence showing that "it is plausible for tobacco and smoking paraphernalia of the type identified in the application to contain or to be used with cannabis."

On this record, we have no doubt that consumers and users of cannabis immediately will perceive the designation 4:20 to describe a feature or attribute that Applicant’s tobacco and smoking paraphernalia plausibly could have, namely, that such goods contain or are for use with cannabis. Because Applicant’s identification of goods specifies “none of the foregoing containing or for use with cannabis,” the proposed mark 4:20 misdescribes a significant characteristic or feature of the goods.

To demonstrate that consumers are likely to believe the misdescription, the Examining Attorney provided evidence that cannabis smoking paraphernalia are common and available to consumers in the marketplace. The evidence included a blog entry discussing the benefits of a "spliff," which combines ground cannabis and tobacco for smoking. "It is therefore likely that the reasonably prudent consumer (i.e., someone who consumes cannabis) would believe that Applicant’s goods, promoted under the proposed 4:20 mark, could contain or could be for use with cannabis."

Applicant Republic Technologies feebly argued that the mark is merely suggestive, but its evidence was unconvincing. Likewise, its assertion that the mark is incongruous in light of the exclusion of cannabis from the identification of goods went up in smoke, since consumers are not aware of the limitation in the application to register.

And so, the Board affirmed the refusal.

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TTABlogger comment: If the misdescription is material to the purchasing decision, the mark is deceptive under Section 2(a) and barred from registration. Do you think 4:20 is deceptive?

Text Copyright John L. Welch 2023.