A term is deceptively misdescriptive as a trademark 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.

See, e.g., In re Hinton, 116 USPQ2d 1051, 1051-52 (TTAB 2015) (proposed mark “THCTea” deceptively misdescriptive of tea-based beverages not containing THC); In re Shniberg, 79 USPQ2d 1309, 1312 (TTAB 2006) (proposed mark “SEPTEMBER 11, 2001” deceptively misdescriptive of history books and entertainment services not pertaining to the events of 9/11).

4:20 Mark

The TTAB recently held that the proposed mark “4:20” was 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.” In re Republic Techs. (NA) LLC, Ser. No. 90053762 (TTAB Dec, 7, 2023).

The evidence of record included dictionary entries and articles that defined 420 or 4/20 or 4:20 as “a slang term for marijuana/cannabis”; and there was no evidence that the term had any other established meaning. Thus, the TTAB found that cannabis users are familiar with the term “420” as describing cannabis, its use, and related paraphernalia.

There also was 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.”

            This evidence shows that consumers are accustomed to encountering in the marketplace smoking paraphernalia for use with cannabis. 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.

Thus, the refusal to register “4:20” for the identified goods on the ground that it is deceptively misdescriptive under Section 2(e)(1) was affirmed.

Thomas P. Howard, LLC is experienced in trademarks nationwide including in Colorado.