The Board affirmed a Section 2(e)(1) refusal of the proposed mark EQ LEARNING, finding it to be deceptively misdescriptive for employment counseling and related educational services. A dictionary definition and third-party website evidence regarding the meaning of EQ, coupled with the applicant's own responses to a Rule 2.61 request for information, proved fatal to the application to register. In re Res-Care, Inc., Serial No. 90309408 (September 14, 2022) [not precedential] (Opinion by Judge Angela Lykos).
Section 2(e)(1) prohibits registration on the Principal Register of designations that are deceptively misdescriptive of the identified goods (absent a showing of acquired distinctiveness under Section 2(f).) A mark is considered deceptively misdescriptive if (1) it misdescribes a quality, feature, function, or characteristic of the goods or services with which it is used; and (2) consumers would be likely to believe the misrepresentation. In re Dolce Vita Footwear, Inc., 2021 USPQ2d 479, at *9 (TTAB 2021). [Note: if the misdescription is material to the purchasing decision, the proposed mark is deceptive under Section 2(a) and is completely barred from registration].
Examining Attorney E. Reeves submitted an entry from THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE showing that "EQ" is an abbreviation for "emotional intelligence." She also made of record third-party websites using the term EQ in connection with employment counseling and educational services as signifying the ability to manage social interactions, emotions and conflict at work.
Taken together, this evidence demonstrates that the abbreviation EQ modifies the noun LEARNING to indicate a type employment counseling and instruction. Thus, EQ LEARNING merely describes a significant characteristic or feature that the services could plausibly possess.
The Examining Attorney made an information request under Rule 2.61(b), which included the following question: "Will applicant's educational services teach emotional intelligence?" Applicant responded: "No."
Thus the first prong of the test was met . The next question was whether a reasonably prudent consumer would be likely to believe the misrepresentation. The Examining Attorney provided evidence showing that competitors in the field promote the benefits of employment counseling and education services designed to improve the consumer's EQ or "emotional intelligence."
This evidence shows that consumers are accustomed to encountering in the marketplace career counseling and education services touting the advantages of the acquisition of knowledge and learning skills pertaining to EQ or emotional intelligence. It is therefore likely that the reasonably prudent consumer (i.e. job seekers, and those looking for career advice or advancement) will be deceived by Applicant's misrepresentation.
Applicant argued that consumers will recognize EQ as a reference to the "evidenced-informed Talent Delivery Model (TDM)- Employability Quadrants (EQ)" that applicant uses." The Board was unconvinced because prospective consumers would likely be unfamiliar with Applicant's "evidenced-informed Talent Delivery Model (TDM)- Employability Quadrants (EQ)," and unlikely to attribute any meaning to Applicant's mark other than "emotional intelligence."
And so, the Board affirmed the refusal.
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