SEPTEMBER 11, 2001 Deceptively Misdescriptive as a mark

In re Mori Shniberg (Serial Number 78083495), the TTAB upheld a refusal of an application for SEPTEMBER 11, 2001 under Section 2(e)(1) on the basis that the mark was deceptively misdescriptive of "books in the field of history; and entertainment in the nature of radio programs in the field of news" not relating to the events of September 11, 2001. The board noted that any mark would be deceptively misdescriptive where the mark misdescribes the goods or services to which it is applied and consumers are likely to believe that misdescription and consider it relevant to the purchasing decision. The board said that the mark would be outright deceptive if the misdescription were material to the purchasing decision. Here, the board found the mark misdescriptive in the context of the goods and services since "September 11, 2001" had become recognized as a shorthand for the tragic events of that day and given the numerous books and shows about those events, consumers upon seeing the mark would believe that applicant's goods and services were also on the subject of the terrorist attacks.