TTAB Nixes Toke Without Smoke

Not often does the Trademark Trial and Appeal Board consider whether a drug is a drug. But that's what happened when the Board reviewed the mark THCTea—finding it misdescriptive. After reviewing the applicant's argument for the mark, one might wonder if he was taking a toke of THC himself!

The test for deceptive misdescriptiveness has two parts. First, the mark must misdescribe the goods or services. Second, consumers must believe the misdescription. This stands in stark contrast to a deceptiveness refusal, where the misdescription need not be material to the purchaser's purchasing decision.

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Originally published by InsideCounsel, December 31, 2015.