IP Law Daily, TRADEMARK—TTAB: Board finds ECOTWEED deceptive for non-tweed footwear, rejecting appeal from Twisted X, (Mar 10, 2025)

By George Basharis, J.D.

In a split decision, the Trademark Trial and Appeal Board affirmed refusals to register ECOTWEED for footwear made of tweed-like material, finding consumers would be misled to believe the shoes contain actual tweed.

The Trademark Trial and Appeal Board has refused registration of the mark ECOTWEED for footwear, determining the mark to be deceptive because it suggests the shoes contain real tweed when they do not. In a split decision, the Board upheld both the primary refusal under Trademark Act Section 2(a) for deceptiveness and an alternative refusal under Section 2(e)(1) for deceptive misdescriptiveness. Administrative Trademark Judge Thurmon filed a dissenting opinion to express his view that consumers would not be misled, but would understand ECOTWEED as referring to a tweed-like fabric made from recycled materials (In re Twisted X, Inc., No. 90002268 (T.T.A.B. March 6, 2025)).

Background. Twisted X, Inc. sought to register the mark ECOTWEED in standard characters for “Footwear made of a tweed-like material” in International Class 25. According to the company’s submissions during prosecution, the footwear is actually made from recycled plastic bottles, not traditional wool tweed.

The examining attorney initially refused registration, arguing that the mark falsely suggests the footwear contains tweed—traditionally a rough woolen fabric—when it does not. Twisted X appealed the refusal to the Board.

The Board's analysis on deceptiveness. The Board’s majority opinion applied the three-part test for determining whether a mark is deceptive. Under this test, a proposed mark is deceptive if:

1. It consists of or comprises a term that misdescribes the character, quality, function, composition, or use of the goods;

2. Prospective purchasers are likely to believe that the misdescription actually describes the goods; and

3. The misdescription is likely to affect the purchasing decision of a significant or substantial portion of relevant consumers.

First prong: Does ECOTWEED misdescribe the goods? The Board examined dictionary definitions and marketplace evidence to establish that “tweed” typically refers to “a rough woolen fabric made usually in twill weaves and used especially for suits and coats.” Various definitions consistently describe tweed as a woolen fabric, meaning material made from the coat of certain mammals, particularly sheep.

The Board found extensive evidence showing that tweed is traditionally composed of or contains wool, including citations from industry sources describing “proper tweed” as “almost always made of pure new wool.” The Board also noted evidence of footwear containing actual tweed being offered in the marketplace.

Because Twisted X admitted its “footwear made of a tweed-like material” does not contain tweed but is instead “made from recycled plastic bottles,” the Board concluded that ECOTWEED misdescribes a significant aspect of the goods. The Board rejected Twisted X’s argument that “tweed” has no precise definition, finding that while some people might mistakenly apply the term to non-woolen fabrics, evidence showed a meaningful distinction between actual tweed and tweed-like fabrics or patterns.

Second prong: Would consumers believe the misdescription? The Board found that consumers encountering footwear under the ECOTWEED mark would likely believe it contains actual tweed, especially since the goods are specifically described as being made of a “tweed-like material.” The Board reasoned that because tweed footwear exists in the marketplace, consumers would reasonably assume that Twisted X’s product also contains real tweed.

Third prong: Would the misdescription affect purchasing decisions? Finally, the Board determined that the misdescription would likely influence purchasing decisions for a significant portion of consumers. The evidence showed tweed has desirable characteristics, including durability, warmth, and weather resistance—all potentially important factors when selecting footwear.

The Board cited multiple sources describing tweed as “desirable for informal outerwear,” “made to withstand harsh climates,” “flexible and warm,” and having “a genuine benefit as a hardy and waterproof material.” These desirable qualities, the Board concluded, would be material to consumers’ purchasing decisions.

The “ECO” prefix does not negate deceptiveness. Twisted X argued that the “ECO” prefix in ECOTWEED would signal to consumers that the product is different from traditional tweed. The company cited third-party registrations such as ECOWOOD and ECOSAND for imitation products, suggesting that “ECO” often refers to recycled plastic materials.

The Board remained unconvinced, noting that the evidence showed "ECO" most commonly suggests “ecological” or “environmental” rather than “imitation.” The Board found some marketplace evidence showing “eco tweed” being used to refer to actual wool products with environmental benefits, further undermining Twisted X’s argument. Consequently, the Board concluded that consumers viewing ECOTWEED would likely understand it to mean environmentally friendly tweed, not imitation tweed.

The “tweed-like” limitation does not prevent deception. A key point of contention was whether the identification of goods as “footwear made of a tweed-like material” prevented the mark from being deceptive. The Board determined that this limitation in the identification did not preclude a finding of deceptiveness. The majority reasoned that consumers are not aware of limitations in trademark identifications that reside in USPTO records. They also noted that the limitation does not require Twisted X to market its goods as being made from imitation tweed or otherwise label them as such.

Alternative refusal under Section 2(e)(1). Although the deceptiveness refusal under Section 2(a) was sufficient to bar registration, the Board also affirmed the alternative refusal under Section 2(e)(1) for deceptive misdescriptiveness. This refusal applies the first two prongs of the deceptiveness test, both of which the Board had already found satisfied.

Dissenting opinion. In a separate dissenting opinion, Administrative Trademark Judge Mark A. Thurmon argued that the majority’s conclusion was illogical. Judge Thurmon contended that consumers cannot simultaneously know the footwear is made of a “tweed-like material” while also believing it contains real tweed, as these are inconsistent beliefs.

Judge Thurmon criticized the majority for focusing too heavily on the meaning of “tweed” while ignoring the full identification of goods and the unitary nature of the ECOTWEED mark. According to Judge Thurmon, consumers of “footwear made of a tweed-like fabric” would understand what “tweed-like” means because they are familiar with traditional tweed in the footwear market.

Judge Thurmon also emphasized that the majority gave insufficient weight to evidence regarding the ECO prefix and its ability to alter the meaning of the word to which it is attached. He pointed to registered marks like ECOWOOD for a wood substitute and ECOSAND for a sand substitute as evidence that ECO can signal an environmentally friendly alternative material. Judge Thurmon concluded that the mark is not misdescriptive or deceptive because consumers would understand ECOTWEED as referring to a tweed-like fabric made from recycled materials, which accurately describes the applicant’s goods.

The Case is Serial No. 90002268.

Judge: Lavache, R.

Attorneys: Brian K. Yost (Decker Jones, P.C.) for Twisted X, Inc. Tatiana Tway for the USPTO.

Companies: Twisted X, Inc.

Cases: Trademark USPTO GCNNews