Saturday, October 20, 2007

Deceptively misdescriptive?

Students understandably struggle with the distinction between arbitrary, deceptively misdescriptive, and deceptive marks, and the examples in the casebook I use don't seem to help much. So here's a possibility closer to home: my sister's blog title is -- the URL of which is

If you actually go to, which I do not recommend, it's some sort of squatter with lots of ad links; " favorites" are Russian Woman, Homeowner Insurance, Russian Women, Bible Studies, Web Hosting, and Research Papers. This site represents a business/branding problem for my sister, but let's look at her blog's name, since blog names can be trademarked (as some on my blogroll have done). It's certainly not arbitrary; as a personal name plus a top-level indicator, it's descriptive. Except that it fails to describe the actual blog, so it's misdescriptive -- and deceptively so, in that people would naturally assume that is where the blog is to be found. Enough people have apparently typed in that domain name seeking her blog that it's worthwhile for the squatter to maintain it, suggesting that actual deception about the location of the blog occurs. (By contrast, is not registered.)

But the site's actual domain name would not affect anyone's purchase decision, so her blog's name is not deceptive according to the accepted trademark test. Thus, it could be registered with proof of secondary meaning just as if she actually owned (By contrast, the squatter couldn't register without her consent, even with secondary meaning, because of the prohibition in sec. 2(c) on registering a living person's name without her written consent.)

None of this really helps answer the question why someone would want a deceptively misdescriptive mark. But maybe is a better example of the category than GLASS WAX polish, which is in the casebook I use; there's always at least one student who argues that the presence of wax would affect a purchase decision for car polish, and I'm in no position to dispute that.

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