Trademark holders of kitchen pots, garden weed control products, and Mary Jane shoes beware: your trademark registration may be refused as deceptively misdescriptive to the extent TTAB holds that a reasonably prudent consumer would believe that your products relate to marijuana.
This past Monday, September 14, TTAB affirmed an Examining Attorney’s refusal to register THCTea (which, according to Applicant, stands for “Tea Honey Care”), finding that the proposed mark misdescribes Applicant’s tea-based beverages as containing the active chemical found in the marijuana plant, tetrahydrocannabinol, commonly known as THC. The Examining Attorney had introduced evidence that tea-based beverages could contain THC, particularly for medicinal purposes. TTAB agreed, finding it plausible that tea-based beverages could contain the substance, and that THCTea, when used for tea-based beverages, is merely descriptive for tea containing THC as a significant ingredient.
TTAB rejected Applicant’s position that the federal and multi-state restrictions on marijuana use make it unlikely that consumers will perceive the goods as containing a controlled substance, stating that “marijuana, although illegal under federal law, may be possessed legally under state law in some circumstances in more than 20 states and the District of Columbia; and that nothing in the application indicates that Applicant’s goods will not be offered through medical marijuana dispensaries or locations where marijuana products are legally (under state law) sold at retail for adult recreational use, either of which may offer consumable goods containing THC.” The Board also noted that “whether Applicant’s products feature the intoxicant THC would be highly relevant to a consumer’s purchasing decision.”
What is perhaps most interesting about the decision is that TTAB is arguably using marijuana’s federally illegal status as a sword and a shield. On the one hand, it has now rejected a mark because consumers may believe, incorrectly, that the underlying product contains the (not yet federally legal) plant. On the other hand, it historically rejects applications that relate to products that are illegal under federal law. Pot calling kettle black?
The decision is In re Christopher C. Hinton, Serial No. 85713080 (Sept. 14, 2005).