Initial Interest Deception

The Board recently analogized and extended the doctrine of initial interest confusion In re ALP of South Beach Inc., (Serial Number 75819306), to include initial interest deception for the purposes of Section 2 (a). Applicant sought registration for CAFETERIA Stylized on the Supplemental Register for "restaurants providing full service to sit-down patrons, excluding cafeteria-style restaurants". Applicant had argued that the mark was not deceptively misdescriptive because everyone who comes to its restaurant knows in advance the true nature of the establishment, namely that it is a trendy sit-down full service restaurant. The board found that the critical point for the purposes of determining whether the mark was deceptively misdescriptive was not when customers walk into the restaurant, but when they first encounter the mark in an advertisement or sign. The mark here was deceptively misdescriptive because it might serve to improperly lure potential customers by indicating that the establishment was a cafeteria, when that is not the case.