DENIM & CO. Is Deceptive For Non-Denim Clothing, Says TTAB Panel Majority

A divided Board panel affirmed two refusals to register the standard character mark DENIM & CO. for various clothing items made of materials other than denim, on the grounds of deceptiveness under Section 2(a) and, alternatively, deceptive misdescriptiveness under Section 2(e)(1). In re QVC, Inc., Serial No. 86670074 (January 21, 2020) [not precedential] (Majority opinion by Judge Cynthia C. Lynch; dissent by Judge Marc A. Bergsman).

Deceptiveness: A mark is deceptive under Section 2(a) if:

it consists of or comprises a term that misdescribes the character, quality, function, composition, or use of the goods; prospective purchasers are likely to believe that the misdescription actually describes the goods; and the misdescription is likely to affect the purchasing decision of a significant or substantial portion of relevant consumers. The panel majority (Judge Lynch and Judge David Mermelstein) found that DENIM & CO. misdescribes the goods. Applicant QVC contended that DENIM refers not to the material content of the goods but to a "comfortable, casual and relaxed lifestyle." The Board didn't buy it. It found that, considering the mark as a whole, DENIM refers to the fabric. QVC's evidence that it refers to a lifestyle was "minimal and unpersuasive," and was "dwarfed by overwhelming evidence" of use of DENIM to refer to the fabric from which denim clothing is made.

QVC did not argue that the addition of "& CO." to DENIM changed the connotation of the mark, but since the dissenting opinion made that point, the panel majority addressed it. It found that CO. is an abbreviation for "company," and that the mark "gives the impression of a business enterprise connected with denim fabric."

The panel majority next found that the misrepresentation was believable. QVC contended that the following limitation in the identification of goods prevents consumers from believing the misdescription:

... sold through interactive television and interactive online media wherein the clothing products offered for sale are modeled and whereby detailed information regarding such clothing products is provided including information as to the fabrics and materials from which such clothing products are made.

The majority, however, found this language ineffective to foreclose deceptiveness. The definition of "interactive" could include any television show or website that allows a consumer to order merchandise. The fact that the clothing is "modeled" does not prevent a...