I’ve long had a table on this site regarding misdescriptive and deceptive marks, but I decided it might be helpful to post a flowchart.
Here’s my first stab at it. It’s intended to help you study the basic differences between:
- Descriptive marks
- Misdescriptive marks (both deceptive and non-deceptive)
- Deceptive marks
Here’s the Coggle, which you can view full-screen here.
Quite intentionally, the Coggle avoids addressing the additional wrinkle of marks that are both deceptively misdescriptive and primarily geographic, which are statutorily barred by Lanham Act section 2(e)(3) if they did not attain secondary meaning prior to NAFTA’s 1993 implementation date. Ouch, my head hurts just writing that sentence. Not only is the phrase “primarily geographic deceptively misdescriptive” marks a handful, but analysis of the post-NAFTA bar on such marks is further complicated by the Federal Circuit’s questionable 2003 decision in In re California Innovations, 329 F.3d. 1334, which treated such marks similarly to deceptive marks.
So for learning purposes, let’s first focus on the basics, which is covered by the Coggle. In class, we can further discuss NAFTA, section 2(e)(3), and In re California Innovations.