‘THCTea' Deceives by Not Including Compound THC

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By Blake Brittain

Sept. 16 — The term “THCTea” is deceptive when used as a trademark on a brand of tea that doesn't include THC—the intoxicant in marijuana—the Trademark Trial and Appeal Board said Sept. 14.

Marijuana is legal in some form in over 20 states and the District of Columbia, so even though marijuana is illegal under federal law, the board said it was still likely that reasonable consumers would perceive that a product called “THCTea” would include the ingredient.

A trademark examiner's refusal to register the mark under Section 2(e)(1) of the Lanham Trademark Act was therefore appropriate because the mark deceptively misdescribed a feature of the goods at issue, the board said.

Christopher C. Hinton, the maker of THCTea, said that the “THC” part of THCTea was meant to stand for “Tea Honey Care,” or “The Honey Care Tea,” and Hinton has used those phrases in advertising.

However, the board said that it would only consider the “THCTea” mark as applied for, and because Hinton didn't seek to register the other phrases, the board considered “THCTea” alone.

“We must consider the term that Applicant seeks to register as it is set forth in the Application. We cannot assume that Applicant has displayed or will always display his proposed mark in combination with words such as ‘Tea Honey Care' or ‘The Honey Care Tea,' ” Administrative Trademark Judge Susan J. Hightower said.

Hinton also argued that legal restrictions on marijuana and THC would make it unlikely that consumers would perceive his goods to contain the controlled substance.

The board said that the evidence indicated otherwise. The board said that “THCTea” was “extremely descriptive,” marijuana may be possessed legally in many states, and nothing in the application indicated that THCTea would be offered through dispensaries where goods including THC would be sold legally.

“Based on these facts, we find that a reasonably prudent consumer would be likely to believe that Applicant's THCTea tea-based beverages contain THC although they do not,” the board said.

The board therefore ruled that the trademark examining attorney's refusal to register it was appropriate because “THCTea” was misdescriptive of a feature of the tea that would be relevant to a buyer's purchasing decision.

To contact the reporter on this story: Blake Brittain in Washington at bbrittain@bna.com

To contact the editor responsible for this story: Mike Wilczek at mailto:mwilczek@bna.com

Full text at http://src.bna.com/iC