Precedential No. 19: TTAB Rules That Evidence From A Website No Longer Active Is Not Probative

Ruling that website evidence from a no longer active website is not probative, the Board found the term CAVIAR to be not misdescriptive of applicant's pet foods and pet treats, and so it reversed Section 2(a) deceptiveness and Section 2(e)(1) deceptive misdescriptiveness refusals of the mark CANINE CAVIAR. The Board did, however, uphold the requirement that applicant disclaim the word CANINE. In re Canine Caviar Pet Foods, Inc., Serial No. 85710350 (May 17, 2018) [precedential] (Opinion by Judge Lorelei Ritchie).

Deceptiveness under Section 2(a) requires a showing that (1) the mark misdescribes the goods, (2) consumers would likely believe the misdescription, and  (3) the misrepresentation would materially affect the purchasing decision. The examining attorney contended that consumers would understand the word "caviar" to mean that caviar is an ingredient of applicant's goods. There was no dispute that the goods do not contain caviar.