TTAB Refuses Registration of “ECOTWEED” for “Footwear Made of a Tweed-Like Material” Based on Deceptiveness

Twisted X, Inc. applied to register the mark ECOTWEED in standard characters on the Principal Register for “footwear made of a tweed-like material” in Class 25. The TTAB upheld the Examining Attorney’s refusal to register the mark under Section 2(a) of the Lanham Act (15 U.S.C. § 1052(a)) on the ground that the mark is deceptive, and, in the alternative, under Section 2(e)(1) (15 U.S.C. § 1052(e)(1)), as deceptively misdescriptive of the identified goods.

TTAB's Decision

In determining whether the mark ECOTWEED was deceptive under Section 2(a), the TTAB analyzed the mark under the following three-pronged test: First, does the applicant’s mark misdescribe the identified goods? Second, would consumers believe the misdescription? Third, would the misdescription affect consumers’ purchasing decisions? Finding all three prongs to be satisfied, the TTAB affirmed the refusal to register “ECOTWEED” as deceptive.

In considering the first prong, the TTAB focused on the term “TWEED” in the mark, relying on dictionary definitions and usage evidence to establish that “TWEED” traditionally refers to a woolen fabric. Based on this meaning and evidence showing that the term “TWEED” specifically refers to the composition of the footwear material, the TTAB concluded that ECOTWEED is misdescriptive because it includes a term, “TWEED,” that immediately conveys that the footwear features a particular type of rough, woolen fabric, when in fact, Twisted X’s product does not possess this feature. Twisted X argued that “TWEED” has no globally accepted precise definition and claimed that “ECOTWEED” is a coined word in which the prefix “ECO” refers to recycled plastic materials, creating the impression that the mark is referring to imitation tweed.  However, the TTAB rejected this argument, finding little evidence to support the claim.

Turning to the second prong, the TTAB noted that various types of footwear containing tweed or tweed-like materials are currently available in the marketplace, supporting the likelihood that consumers could be misled into believing that the goods are made from real tweed.

With respect to the third prong—namely, whether tweed has appealing features that would matter in selecting footwear—the TTAB found evidence describing the desirable characteristics of tweed, such as durability, warmth, and weather resistance. The TTAB therefore concluded that the misdescription is likely to affect the purchasing decisions of a significant or substantial portion of relevant consumers in the market for footwear.

For the sake of completeness, the TTAB additionally noted that the mark also fails under Section 2(e)(1) of the Trademark Act, because it is deceptively misdescriptive of the identified goods. The requirements for deceptive misdescriptiveness under Section 2(e)(1) are the same as the first and second prongs discussed above under Section 2(a). A mark that fails under Section 2(e)(1)—unlike Section 2(a)—could be registered on the Supplemental Register if it were in use in commerce, and could ultimately be registrable on the Principal Register with a showing of secondary meaning. However, the ECOTWEED application is based on Twisted X’s intent to use the mark in the future, and there is nothing in the record to show any use of the mark.  Thus, even if it were determined that the third prong under Section 2(a) was not satisfied (i.e., the mark’s deceptiveness would not impact consumers’ purchasing decisions), ECOTWEED would be ineligible at present for registration on either the Principal or the Supplemental Register due to lack of secondary meaning and lack of use in commerce.

Dissenting Opinion

One judge on the TTAB panel strongly dissented from the majority’s conclusion, calling it illogical and unlikely to reflect the understanding of relevant consumers. He criticized the majority for focusing narrowly on the term “TWEED” and ignoring the “tweed-like” limitation in the identification of goods. He argued that the mark should be evaluated from the perspective of consumers who know what the goods are, consistent with established precedents, and not within a broader footwear market where consumers know only that the goods are footwear. Given the evidence of various tweeds on the market, including synthetic tweeds, such consumers, he contended, will understand what “tweed-like” means and understand that Applicant’s shoes use an alternative to traditional tweed. He further emphasized that ECOTWEED is a unitary mark and, as the evidence shows, the “eco” prefix alters the meaning of the base word. He concluded, therefore, that ECOTWEED is not misdescriptive and cannot be deceptive, so the majority have misconstrued the law and reached the wrong conclusion.

In response, the majority panel stated that the question is whether a consumer who encounters footwear that has the look or feel of tweed and is offered under the mark ECOTWEED would believe that the footwear contains tweed. And they noted that we should not infer that consumers will know that the footwear here is something other than tweed because of the identification in the trademark filing, which does not have a real-world impact that would prevent consumer deception. They also noted that the dissent’s position is at odds with a decades-long line of case law holding a mark deceptive, or deceptively misdescriptive, despite wording in the identification indicating that the goods do not feature the characteristic identified in the mark.

This case is In re Twisted X, Inc., 2025 TTAB LEXIS 126, Serial No. 90002268.