Trademark Trial and Appeal Board
Patent and Trademark Office (P.T.O.)
*1 IN RE WOODWARD & LOTHROP, INCORPORATED
Serial No. 519,228
March 18, 1987
G. Cabell Busick and Mason, Fenwick & Lawrence for applicant
Trademark Examining Attorney
Law Office II
(John C. Demos, Managing Attorney)
Before Allen, Simms and Krugman
Opinion by Simms
Woodward & Lothrop Incorporated has appealed from the final refusal of the Trademark Examining Attorney to register the mark shown below for 'jewelry, namely, earrings, necklaces and bracelets, not inclusive of cameos or cameo-like elements.' [FN1] The Examining Attorney has refused registration
under Section 2(e)(1) of the Act, 15 U.S.C. § 1052(e)(1), on the ground that the term sought to be registered is deceptively misdescriptive of applicant's goods. We affirm.
Initially, applicant sought registration of its mark for 'jewelry, namely, earrings, necklaces and bracelets,' but, after the Examining Attorney refused registration on the basis that applicant's mark was merely descriptive of its goods, amended the application to the current description of goods. The Examining Attorney then refused registration on the basis that the mark sought to registered is deceptively misdescriptive of applicant's goods.
First, referring to a definition from Jewelers' Dictionary, Third Edition (1976), as follows:
cameo. A stone, usually composed of two differently colored layers, which has been carved so that a raised image in one color stands out on a background of another color. Cameos are principally cut from a variety of agate with flat bands, dyed and known as onyx or sardonyx. These are known as stone cameos. Shell cameos are cut from shells with similar colored layers. Shell is softer and more easily cut than agate. Cameos are molded of Wedgwood porcelain, of lava, and of glass. The glass cameos are often made in imitation of the cut stone cameos. 'Molded' or 'pressed' cameos should be so described. 'Assembled cameos' are made of two natural stones cemented together. 'Assembled imitation cameos' are the same with one or more parts made of glass or plastic.
the Examining Attorney argues that the term 'Cameo' used in connection with goods which do not contain cameos misdescribes the goods. In arguing that purchasers are likely to believe the misrepresentation, the Examining Attorney contends that consumers may believe that applicant's goods are actually cameos because they are so marked. Moreover, the Examining Attorney contends that a consumer who is not familiar with cameos may believe that applicant's goods actually contain cameos, and the fact that the purchaser is actually viewing the goods at or before the time of purchase will not avoid the deception, especially if the purchaser does not know what a cameo looks like.
The test for determining whether a term is deceptively misdescriptive as applied to the goods involves a determination of (1) whether the matter sought to registered misdescribes the goods and, if so, (2) then whether anyone is likely to believe the misrepresentation. In re Quady Winery Inc., 221 USPQ 1213, 1214 (TTAB 1984). Despite applicant's argument to the contrary, we have no doubt that the term 'Cameo' misdescribes applicant's goods which are said not to include cameos or cameo-like elements. 'Cameo' clearly names a type of jewelry and applicant asserts that its jewelry is not of that type.
*2 The second part of the test for determining deceptive misdescriptiveness presents more difficulty, however. Applicant argues that since jewelry is worn to adorn the body, it is bought after careful visual examination. Applicant argues that the reasonably informed consumer examining applicant's jewelry [FN2] would easily determine that applicant's jewelry items are not cameos and that any misdescriptiveness would therefore not likely be believed by the purchaser. [FN3] Moreover, applicant argues that the test of deceptive misdescriptiveness should not be applied to a class of 'ignorant' purchasers who do not know what cameos look like.
While we acknowledge that applicant's amended description of goods makes this a closer case, we nevertheless agree with the Examining Attorney that a significant number of purchasers are likely to believe that applicant's jewelry is cameo jewelry. While it is true that a reasonable purchaser carefully examining jewelry which has no cameos or cameo-like elements may not be deceived into believing that it does, not all jewelry is purchased in the manner in which applicant's counsel describes in his appeal brief. For example, some jewelry may be purchased from catalogs which either inadequately describe or depict the jewelry items. If applicant's CAMEO jewelry were sold under those conditions, and under other conditions where careful examination may not be possible, it is not inconceivable, and indeed quite likely, that a reasonable consumer would think that the goods contain some form of a cameo. Also, if applicant's goods were to be advertised on the radio or promoted by word-of-mouth, a reasonable consumer, we believe, would expect that applicant's jewelry sold under the mark did indeed contain cameos. As indicated above, the term 'cameo' has a specific meaning with respect to jewelry and under these circumstances it may not be evident to the purchaser that applicant's goods do not contain cameos.
Decision: The refusal of registration is affirmed.
D. B. Allen
R. L. Simms
Members, Trademark Trial and Appeal Board
FN1. Serial No. 519,228, filed January 25, 1985, claiming use since March 19, 1984.
FN2. The Examination Attorney did not request, nor did applicant supply, any descriptive literature pertaining to applicant's jewelry. Compare: In re Franklin Mint Corp., 209 USPQ 172, 173-174 (TTAB 1980). With its appeal brief, however, applicant submitted a photograph of a necklace and a pair of earrings. However, because the jewelry is photographed from a distance, it is difficult to determine the exact nature of applicant's jewelry.
FN3. Applicant does acknowledge, however, that the use of the term 'Cameo' in connection with its goods 'indirectly enhances the intended association of this trademark with the attributes long associated with 'cameos', such as, quality of craftsmanship and classic lines or features of delicacy.' Applicant's response, filed October 8, 1985.