Michael J. Foycik Jr., Esq.

The TTAB in this case determines that a mark “alpha CU” (where for the sake of clarity the term “alpha” is the spelled-out version of the actual mark having the corresponding symbol) is deceptively misdescriptive of a vitamin supplement having no copper.  The TTAB (Trademark Trial and Appeal Board) considers a three prong test, as follows.

First, the TTAB concludes that the term CU would be seen by consumers as the symbol for copper, rather than “controlled uptake” as the Applicant alleges.  So, the first prong is that the symbol CU does not correctly describe the goods.  The second prong of the test is whether consumers would be likely to believe the mark actually describes the goods. 

The third prong of this test is also of great interest: “whether the misdescription would be material to a consumer's decision to purchase the goods.” It seems to this write that there are many other instances where a mark may seem misdescriptive on its face, and yet be deemed registrable by passing the second and third prongs of the test of misdescriptiveness as identified above.  Applicant's can benefit from knowing this, when confronted with a misdescriptiveness refusal to register.

The “second prong” test seems highly subjective to this writer, but is an accepted test.  In this writer's view, this case was easily and clearly decided, but other cases could be much closer.