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Examination Guide 1-09
Examination Procedures for §2(a) Deceptiveness Refusals for Non-Geographic Marks
Issued May 11, 2009


  1. INTRODUCTION
  2. ELEMENTS OF A §2(a) REFUSAL
  3. ESTABLISHING DECEPTIVENESS
    1. Is the Term Misdescriptive of a Character, Quality, Function, Composition, or Use of the Goods/Services?
    2. Is the Misdescription Believable?
    3. Determining Materiality
      1. Objective Criteria
      2. Mere Personal Preference
  4. PROCEDURES FOR ISSUING §2(a) REFUSALS
    1. When the Mark is Clearly Misdescriptive
    2. When It is Not Clear Whether the Mark is Misdescriptive
    3. Guidelines for Amending the Identification of Goods/Services
      1. Goods
      2. Services
    4. Responding to Applicant’s Arguments
      1. Extrinsic Evidence
      2. When Deception Occurs
      3. Evidence of Long-Term Use and Acquired Distinctiveness
  5. CASE LAW INTERPRETING §2(a)
    1. Deceptive
    2. Not Deceptive
  1. INTRODUCTION

    Section 2(a) of the Trademark Act, 15 U.S.C. §1052(a), prohibits the registration of immoral or scandalous matter; deceptive matter; and matter that may disparage, falsely suggest a connection, or bring into contempt or disrepute. This examination guide reviews (1) the elements of a §2(a) deceptiveness refusal with respect to non-geographic marks; (2) evidentiary issues with respect to the refusal; (3) procedures for issuing refusals; and (4) case law interpreting §2(a)1. It supersedes the Trademark Manual of Examining Procedure (TMEP), 5th edition, to the extent any inconsistency exists.

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  3. ELEMENTS OF A §2(a) REFUSAL

    Section 2(a) is an absolute bar to the registration of deceptive matter on either the Principal Register or the Supplemental Register. Neither a disclaimer of the deceptive matter nor a claim that it has acquired distinctiveness under §2(f) can obviate the deceptiveness.2 The U.S. Court of Appeals for the Federal Circuit articulated the following test for determining whether a mark consists of or comprises deceptive matter:3

    1. Is the term misdescriptive of the character, quality, function, composition, or use of the goods?
    2. If so, are prospective purchasers likely to believe that the misdescription actually describes the goods?
    3. If so, is the misdescription likely to affect a significant portion of the relevant consumers’ decision to purchase?

    If the first two inquiries are answered affirmatively, the mark is at least deceptively misdescriptive under §2(e)(1).4 For example, the mark TITANIUM, when used in connection with recreational vehicles that were not made from titanium, was found to be deceptively misdescriptive.5 Based on substantial evidence of consumer familiarity with the use of titanium in the automotive industry, the Court found that consumers would likely believe that recreational vehicles bearing the mark TITANIUM were, in fact, made from titanium. However, in order to hold a mark deceptive under §2(a), the third prong, materiality, must then be proven.6

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  5. ESTABLISHING DECEPTIVENESS

    A deceptive mark may be comprised of:

    1. a single deceptive term;
    2. a deceptive term embedded in a composite mark that includes additional non-deceptive wording and/or design features;
    3. a term or a portion of a term that alludes to a deceptive quality, characteristic, function, composition, or use;7
    4. the phonetic equivalent of a deceptive term;8 or
    5. the foreign equivalent of any of the above.9
    Although there is no published Board or Federal Circuit decision regarding whether a mark consisting solely of a design can be deceptive, if there is evidence to support such a refusal, it should be issued.10

    Marks containing a term identifying a material, ingredient, or feature should not be refused registration under §2(a) if the mark in its entirety would not be perceived as indicating that the goods contained that material or ingredient.11 For example, the mark COPY CALF was found not deceptive for wallets and billfolds of synthetic and plastic material made to simulate leather, because it was an obvious play on the expression "copy cat" and suggested to purchasers that the goods were imitations of items made of calf skin.12

    In addition, formatives and other grammatical variations of a term may not necessarily be deceptive in relation to the relevant goods. For example, “silky” is defined, inter alia, as “resembling silk.” Thus, a mark containing the term SILKY would not be considered deceptive (but might be unregistrable under §2(e)(1)). Dictionary definitions of such terms should be carefully reviewed to determine the significance the term would have to prospective purchasers. For example, although the term GOLD would be considered deceptive for jewelry not made of gold, the term GOLDEN would not be deceptive where dictionary definitions indicate that the term can refer to the “color of gold.”

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    1. Is the Term Misdescriptive of a Character, Quality, Function, Composition, or Use of the Goods/Services?

      To determine whether a mark is misdescriptive under §2(e)(1), the examining attorney must first look to the identification of goods/services. If the identification does not include the descriptive/misdescriptive wording in the mark, the examining attorney must then make of record evidence demonstrating why the mark is misdescriptive. Specifically, the record should show the meaning of the wording at issue and that the identification indicates that the applicant’s goods/services lack the feature or characteristic. Examples of such evidence are dictionary definitions, Lexis/Nexis® articles, Internet websites, advertising material, product information sheets, hang tags, point-of-purchase displays, and trade journals. The applicant’s admission regarding its goods/services may also satisfy the first prong of the test.

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    3. Is the Misdescription Believable?

      The examining attorney must then prove that the description conveyed by the mark is plausible by demonstrating that consumers regularly encounter goods or services that contain the features or characteristics in the mark. For example, to support the believability element as to the mark LOVEE LAMB for seat covers that were not made of lambskin, the examining attorney in the Budge case provided evidence that seat covers can be and are made from lambskin.13 Likewise, the attorney in Organik made of record excerpts from a Lexis/Nexis® search for the phrases “organic clothing,” “organic fabric,” “organically grown cotton,” and “organic cotton” to prove that consumers were familiar with clothing and textiles from organically grown plants or plants free of chemical processing or treatment.14 Applicant’s own hang tags, labels, advertising, and product information may also provide evidence of the believability of the misdescription.15

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    5. Determining Materiality

      To establish a prima facie case of deceptiveness, the examining attorney must provide sufficient evidence that the misdescriptive quality or characteristic would be a material factor in the purchasing decision of a significant portion of the relevant consumers because it would make the product or service more appealing or desirable.16 A product or service is usually more desirable because of objective standards or criteria that provide an objective inducement to purchase the goods and/or services beyond that of mere personal preference.

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      2. Objective Criteria

        In assessing whether a misdescription would affect the decision to purchase, the following are examples (not a comprehensive list) of the type of objective criteria that should be used to analyze whether a term is a material factor. The evidence may often point to more than one characteristic, thereby strengthening the examining attorney’s prima facie case. For example, the evidence may show that goods deemed “organic” because they are produced in compliance with objective criteria can also be more costly, provide health benefits, and satisfy a social policy of reducing the impact on the environment by utilizing chemical-free growing practices. The evidence also must suffice to indicate that the misdescriptive quality or characteristic would affect the purchasing decision of a significant portion of the relevant consumers.17 Generally, evidence of the objective inducement to purchase (see below) supports a presumption that a significant portion of the relevant consumers would likely be deceived.

        • Superior Quality - The evidence must support a finding that goods or services that contain or feature the misdescriptive term are superior in quality to similar goods and/or services that do not. For example, silk can be shown to be a more luxurious and expensive material because of the difficulty in making silk, its unique feel, and its breathability. Similarly, cedar wood can be shown to have superior durability and resistance to decay.
        • Enhanced Performance or Function - The evidence must support a finding that goods containing the characteristic or feature at issue are superior to those that do not. For example, certain wood species are naturally resistant to termite attack or may be more durable than others. There might also be evidence of an increasing interest in reducing the potential leaching of chemicals from treated wood into the environment.
        • Difference in Price - Evidence of a price differential between items that do or do not contain the misdescriptive term may be enough to support a §2(a) refusal, depending upon the nature of the goods or services. It is also important to remember that because a difference in price is relative to the goods and/or services in a particular industry, a particular term may be deceptive for goods and services that are not typically thought of as luxury items.
        • Health Benefit - The evidence must establish a belief that the feature or characteristic provides a health benefit.
        • Religious Practice or Social Policy - The evidence must show that the religious practice or social policy has definable recognized criteria for compliance in order to support a finding of deceptiveness when the criteria are not adhered to by the applicant. For example, a body of Jewish law deals with what foods can and cannot be eaten and how those foods must be prepared and eaten. The term “kosher" refers to food prepared in accordance with these standards as well as to the selling or serving of such food.18 Another example is the term “vegan,” which is defined as someone who eats plant products only and who uses no products derived from animals, such as fur or leather.19

        The evidence necessary to establish deceptiveness can come from the same sources used to show that the term is misdescriptive. Searches that combine the deceptive term with terms such as “desirable,” “superior,” “premium,” “better quality,” “sought after,” “more expensive,” or “established standards” may be useful in seeking evidence to support the second and third prongs of the test.

        Applicant’s own advertising - in the form of specimens, brochures, web pages, press releases, or product and service information sheets - may provide the best evidence of deceptiveness. Moreover, the examining attorney should make of record any instances where the applicant attempts to benefit from the potentially deceptive term and where the advertising includes false assertions related to the deceptive wording. Although not a requirement for a deceptive refusal, proof of an actual intent to deceive would be considered strong evidence of deceptiveness.

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      4. Mere Personal Preference

        The types of objective criteria discussed above can be contrasted with mere personal preferences for which the requisite evidentiary support generally cannot be found to establish materiality. For example, SPEARMINT for gum, LAVENDER for dish soap, and BLUE for bicycles refer to flavor, scent, and color features that, in those contexts, most likely reflect mere personal preferences which would not be considered material for purposes of a deceptiveness refusal.

        Similarly, personal preferences regarding types of cuisine served at restaurants (e.g., SEAFOOD or PIZZA) generally do not establish materiality absent evidence that the type of cuisine meets some objective criteria more in line with those listed above, such as for VEGAN or KOSHER.

        Whether the requisite evidentiary support can be found to establish that the use of such terms in connection with goods/services that do not contain or feature the characteristic is deceptively misdescriptive must be determined on a case-by-case basis.20

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  7. PROCEDURES FOR ISSUING §2(a) REFUSALS21
    1. When the Mark is Clearly Misdescriptive

      If there is evidence in the record clearly indicating that the mark or a term(s) in the mark is misdescriptive (e.g., the specimen or language in the identification indicates that the goods/services do not have the relevant feature or characteristic), the examining attorney must determine whether the misdescription is believable and material and do the following:

      • If the misdescription would not be believable, no refusal should be made. If the application is otherwise in condition for publication, approve the mark for publication. Otherwise, issue an Office action containing any relevant refusals and/or requirements (but no deceptiveness or deceptive misdescriptiveness refusal).
      • If the misdescription would be believable, but would not be material, issue a refusal under §2(e)(1) as deceptively misdescriptive, with supporting evidence, and all other relevant refusals and/or requirements.
      • If the misdescription would be believable and material, issue a deceptiveness refusal under §2(a) with supporting evidence, an alternative refusal under §2(e)(1) as deceptively misdescriptive, and all other relevant refusals and/or requirements.

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    3. When It is Not Clear Whether the Mark is Misdescriptive

      When a mark comprises or contains descriptive wording, but it is not clear whether the goods/services contain the relevant feature or characteristic, the examining attorney must first determine whether such feature or characteristic would be believable and material to the decision to purchase.

      1. If the feature or characteristic would be believable and material, the identification must include the feature or characteristic in order to resolve the ambiguity between the mark and the identification of goods/services. The identification must be amended even if the record indicates elsewhere that the goods/services contain the feature or characteristic. Therefore, if the application could otherwise be put in condition for approval for publication by an examiner’s amendment (TMEP §707), to expedite prosecution, the examining attorney should:
        • Attempt to contact the applicant to obtain authorization for a disclaimer and an amendment to the identification to include the feature or characteristic (see Section IV.C.), and for any other amendments that would put the application in condition for approval for publication.
        • If the applicant states that the goods/services do not contain the feature or characteristic, the examining attorney must so indicate in a note to the file and must then issue a refusal under §2(e)(1) as deceptively misdescriptive (if believable but not material) or a refusal under §2(a) as deceptive (if believable and material) and an alternative refusal under §2(e)(1) as deceptively misdescriptive, and make all other relevant requirements.
        • To ensure the completeness of the record in the event of an appeal, any Office action issued must also include an information request under Rule 2.61(b), 37 C.F.R. §2.61(b), asking whether the goods/services contain the feature or characteristic.
      2. If the examining attorney is unable to reach the applicant or cannot obtain authorization for an examiner’s amendment, or if an Office action is otherwise necessary to make substantive refusals or requirements that cannot be satisfied by examiner’s amendment, the examining attorney must proceed as follows:
        • Issue a refusal under §2(e)(1) as descriptive (or a requirement for a disclaimer, if appropriate22 ), based on the presumption that the goods/services contain the feature or characteristic, and a requirement that the applicant amend the identification to include the feature or characteristic; and
        • If the misdescription would be believable and material, issue an alternative refusal under §2(a) as deceptive, based on the presumption that the goods/services do not contain the relevant feature or characteristic, and supported by evidence; and
        • Issue an alternative refusal under §2(e)(1) as deceptively misdescriptive, based on the presumption that the goods/services do not contain the relevant feature or characteristic (the presumption is made even if the record indicates that the goods/services contain the feature because the identification does not include the feature); and
        • Issue any other relevant refusals and requirements; and
        • Issue an information request under Rule 2.61(b), 37 C.F.R. §2.61(b), asking whether the goods/services contain the feature or characteristic. This written request is made to ensure the completeness of the record in the event of an appeal.

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    4. Guidelines for Amending the Identification of Goods/Services
      1. Goods

        If the applicant amends the identification to include the potentially deceptive term, the Office will rely on the presumption that the goods contain a sufficient amount of the material to obviate deceptiveness; there is no requirement to substantiate the amount or percentage of the material or feature in the goods. Thus, the applicant may amend “ties” to “silk ties,” “milk and cheese” to “organic milk and cheese,” and “jewelry” to “gold jewelry” or to “jewelry made in whole or significant part of gold.”

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      3. Services

        Amending an identification of services to add “featuring” a material term (e.g., “restaurants featuring organic cuisine” and “retail furniture stores including leather furniture”) generally is sufficient to obviate deceptiveness. For example, as long as the identification indicates that the restaurant provides organic cuisine, or the furniture store sells leather furniture, there is no deception even if other types of food or furniture are also available.

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    6. Responding to Applicant’s Arguments
      1. Extrinsic Evidence

        Applicants may attempt to overcome a §2(a) refusal by providing evidence that applicant’s advertising, or other means, would make consumers aware of the misdescription. Neither applicant’s evidence regarding advertising, labeling, or extent of use, nor information found on the specimens, can negate the misdescriptiveness with regard to use of the mark in relation to the goods or services. In addition, an applicant’s anecdotal or past practices and “explanatory statements in advertising or on labels which purchasers may or may not note and which may or may not always be provided” are of little value in the deceptiveness analysis23.

        However, in some cases, the applicant may be able to provide credible evidence that consumers would not expect goods sold under a certain mark to actually consist of or contain the feature or characteristic named in the mark24.

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      3. When Deception Occurs

        Applicants often argue that there is no deception because consumers will immediately discern the true nature of the goods and/or services when they encounter them. This argument is not persuasive. Deception can attach prior to seeing or encountering the goods or services, for example, based on advertising over the radio or Internet or via word of mouth.25

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      5. Evidence of Long-Term Use and Acquired Distinctiveness

        As noted above, marks that are deceptive under §2(a) are never registrable on either the Principal Register, even under §2(f), or the Supplemental Register. However, applicants may present evidence of a similar nature to what is often submitted for acquired distinctiveness, such as declarations regarding how the mark is perceived by consumers, as rebuttal evidence to the prima facie case, in an effort to overcome one or all of the prongs of the §2(a) test26. Note that merely relying on the length of use, without providing other information or evidence, would never be sufficient to overcome a §2(a) refusal.

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  8. CASE LAW INTERPRETING §2(a)
    1. Deceptive

      Published Cases: In re Budge Mfg. Co. Inc., 857 F.2d 773, 8 USPQ2d 1259 (Fed. Cir. 1988), aff'g 8 USPQ2d 1790 (TTAB 1987) (LOVEE LAMB held deceptive for seat covers not made of lambskin); In re Phillips-Van Heusen Corp., 63 USPQ2d 1047 (TTAB 2002) (SUPER SILK held deceptive for "clothing, namely dress shirts and sport shirts made of silk-like fabric"); In re Organik Technologies, Inc., 41 USPQ2d 1690 (TTAB 1997) (ORGANIK deceptive for clothing and textiles made from cotton that is neither from an organically grown plant nor free of chemical processing or treatment, notwithstanding applicant's assertions that the goods are manufactured by a process that avoids the use of chemical bleaches, because the identification of goods was broad enough to include textiles and clothing manufactured with chemical processes or dyes); In re Shapely, Inc., 231 USPQ 72 (TTAB 1986) (SILKEASE held deceptive as applied to clothing not made of silk); Evans Products Co. v. Boise Cascade Corp., 218 USPQ 160 (TTAB 1983) (CEDAR RIDGE held deceptive for embossed hardboard siding not made of cedar); In re Intex Plastics Corp., 215 USPQ 1045 (TTAB 1982) (TEXHYDE held deceptive as applied to synthetic fabric for use in the manufacture of furniture, upholstery, luggage and the like); Tanners' Council of America, Inc. v. Samsonite Corp., 204 USPQ 150 (TTAB 1979) (SOFTHIDE held deceptive for imitation leather material); In re U.S. Plywood Corp., 138 USPQ 403 (TTAB 1963) (IVORY WOOD, for lumber and timber products, held deceptive since the goods were not made of ivorywood nor did they contain an ivorywood pattern).

      Unpublished Cases: In re Angus Brands, Inc., 2006 TTAB Lexis 146, Serial No. 74373897 (February 2, 1997)[not precedential](ANGUS BRAND and design held deceptive for “processed meats, namely, roast beef, corned beef and pastrami”); In re Closet Clothing Co. Limited, Serial No. 76623748 (March 5, 2008) [not precedential] (MINK BIKINI held deceptive for clothing and bikini swimwear); In re Dillard’s Inc., Serial No. 75479731 (April 12, 2002)[not precedential]( DENIM RIDGE held deceptive for “men’s shirts, shorts, pants, jeans, jackets and sweaters”); In re Encompass Group, LLC, Serial No. 76311395 (Apr. 20, 2006)[not precedential](SILK EASE held deceptive for "health care apparel worn by professional medical personnel, namely, scrub suits and examination gowns"); In re Farouk Systems, Inc., Serial No. 78646723 (June 19, 2008) [not precedential](BIOSILK deceptive for clothing notwithstanding applicant’s use of the mark on cosmetic and hair products); In re Fisi Fibre Sintetiche S.p.A., Serial No. 76583503 (November 27, 2007)[not precedential](ECODOWN deceptive for pillow and pillowforms); In re Paj, Inc., Serial No. 75438388 (March 7, 2001)[not precedential](DIAMONDLITE held deceptive for “jewelry”); In re Brough, Serial No. 78680981 (January 30, 2008), recon denied July 7, 2008 [not precedential](MINK and design deceptive for clothing, headgear and footwear made of non-animal products); In re Rubie’s Costume Co., Inc., Serial No. 75410355 (September 26, 2000)[not precedential](RUBIESILK held deceptive for “fabric used in the manufacture of masquerade costumes”).

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    3. Not Deceptive

      Philip Morris Inc. v. Reemtsma Cigarettenfabriken GmbH, 14 USPQ2d 1487 (TTAB 1990) (PARK AVENUE held neither deceptive nor geographically deceptively misdescriptive as applied to applicant's cigarettes and smoking tobacco, the Board finding no goods/place association between Park Avenue in New York City, on which opposer's world headquarters was located, and tobacco products); In re Fortune Star Products Corp., 217 USPQ 277 (TTAB 1982) (NIPPON, for radios, televisions and the like, found not deceptive in relation to the goods because, although the applicant was an American firm, the goods were actually made in Japan); In re Sweden Freezer Mfg. Co., 159 USPQ 246, 249 (TTAB 1968) (SWEDEN and design, for which registration was sought under §2(f) for external artificial kidney units, held not deceptive, the Board finding the case to be in the category "where a geographical trademark may involve a degree of untruth but the deception may be perfectly innocent, harmless or negligible").

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1See Examination Guide 02-09 regarding the procedures for geographically deceptive and geographically deceptively misdescriptive marks.
2See American Speech-Language-Hearing Association v. National Hearing Aid Society, 224 USPQ 798, 808 (TTAB 1984); In re Charles S. Loeb Pipes, Inc., 190 USPQ 238, 241 (TTAB 1975); Trademark Manual of Examining Procedure (TMEP) §1203.02 (5th ed., 2007).
3In re Budge Mfg. Co. Inc., 857 F.2d 773, 775, 8 USPQ2d 1259, 1260 (Fed. Cir. 1988); In re ALP of South Beach, Inc., 79 USPQ2d 1009, 1010 (TTAB 2006).
4Section 2(e)(1) deceptively misdescriptive refusals are further distinguished and discussed in SectionIV. A., infra.
5Glendale International Corp. v. United States Patent and Trademark Office, 374 F. Supp. 2d 479, 75 USPQ2d 1139 (E.D. Va. 2005).
6See TMEP §1203.02(a) and In re Quady Winery Inc., 221 USPQ 1213 (TTAB 1984) regarding the distinction between deceptive and deceptively misdescriptive marks.
7Am. Speech-Language-Hearing, supra.
8 In re Organik Technologies, Inc., 41 USPQ2d 1690 (TTAB 1997); Tanners' Council of America, Inc. v. Samsonite Corp., 204 USPQ 150 (TTAB 1979).
9Marks consisting of or including foreign words or terms from common, modern languages are translated into English to determine genericness, descriptiveness, likelihood of confusion, and other similar issues. See, e.g., Palm Bay Imps., v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 1377, 73 USPQ2d 1689, 1696 (Fed. Cir. 2005).
10See TMEP §1209.03(f).
11 A. F. Gallun & Sons Corp. v. Aristocrat Leather Products, Inc., 135 USPQ 459 (TTAB 1962).
12Id. Note, however, the difference with such marks as TEXHYDE and SOFTHIDE, which were held deceptive as applied to synthetic fabric and imitation leather material, respectively. In re Intex Plastics Corp., 215 USPQ 1045 (TTAB 1982); Tanners' Council of Am., supra.
13Budge, 857 F.2d at 775, 8 USPQ2d at 1261.
14Organik, 41 USPQ2d at 1691.
15In re Shapely, Inc., 231 USPQ 72, 75 (TTAB 1986); Evans Products Co. v. Boise Cascade Corp., 218 USPQ 160, 165-166 (TTAB 1983).
16Budge, 857 F.2d at 775-776, 8 USPQ2d at 1261; see also In re Spirits Int’l, N.V., Docket No. 2008-1369, slip op. at 9 (Fed. Cir. Apr. 29, 2009). Note that in cases under the doctrine of foreign equivalents, where the misdescription in the mark appears in a foreign language, the requirement that a substantial portion of the relevant consuming public would likely be deceived raises special issues. To make a determination about “a substantial portion” in such cases, the examining attorney must consider whether the foreign language term would be understood by consumers who do not speak the foreign language, and/or whether consumers who speak the foreign language could constitute a substantial portion of the relevant consumers (e.g., because they are the “target audience”). Id. at 15-16.
17Spirits, slip op. at 9.
18The American Heritage® Dictionary of the English Language: Fourth Ed. 2000.
19Id.
20Glendale, supra.
21The procedures apply to applications under §§44 and 66(a) as well as those under §1.
22 In some cases, a disclaimer may not be appropriate because the mark is unitary (e.g., WHOLE LOTTA SNAKESKIN GOIN’ON for shoes, belts, bags, etc.). However, if the term in the mark is a material feature, the identification must still be amended to include the feature.
23Budge, 857 F.2d at 776, 8 USPQ2d at 1261.
24In re Robert Simmons, Inc. 192 USPQ 331 (TTAB 1976). In this case, the applicant was able to demonstrate with credible evidence that consumers encountering sable brushes are accustomed to brushes that may or may not be made from the hair of sable.
25See ALP of South Beach, 79 USPQ2d at 1014.
26In re Woolrich Woolen Mills Inc., 13 USPQ2d 1235, 1238 (TTAB 1989). Rebuttal evidence submitted by the applicant included declarations, not just an allegation of long and continuous use.

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