As noted in TMEP §1210.05(a), the test for determining whether a mark is primarily geographically deceptively misdescriptive under §2(e)(3) of the Trademark Act is the same as the test for determining whether a mark is deceptive under §2(a) of the Act. 15 U.S.C. §§1052(a), (e)(3). To support a refusal of registration on the ground that a geographic term is deceptive under §2(a), the examining attorney must show that:

1. (1) the primary significance of the mark is a generally known geographic location (see TMEP §§1210.02–1210.02(b)(iv));
2. (2) the goods or services do not originate in the place named in the mark (see TMEP §1210.03);
3. (3) purchasers would be likely to believe that the goods or services originate in the geographic place identified in the mark (see TMEP §§1210.04–1210.04(d)). Note: If the mark is remote or obscure, the public is unlikely to make a goods/place or services/place association (see TMEP §1210.04(c)); and
4. (4) the misrepresentation is a material factor in a substantial portion of the relevant consumer’s decision to buy the goods or use the services (see TMEP §§1210.05(c)–(c)(ii)).

In re Miracle Tuesday, LLC, 695 F.3d 1339, 1343, 104 USPQ2d 1330, 1332 (Fed. Cir. 2012); In re Spirits Int’l, N.V., 563 F.3d 1347, 1350–54, 90 USPQ2d 1489, 1490–95 (Fed. Cir. 2009); Institut Nat’l des Appellations D’Origine v. Vintners Int’l Co., 958 F.2d 1574, 1580, 22 USPQ2d 1190, 1195 (Fed. Cir. 1992); In re Compania de Licores Internacionales S.A., 102 USPQ2d 1841, 1843 (TTAB 2012); In re House of Windsor, Inc., 221 USPQ 53 (TTAB 1983) ; see also In re Cal. Innovations Inc., 329 F.3d 1334, 66 USPQ2d 1853 (Fed. Cir. 2003). See TMEP §1210.01(a) for more information regarding determining relevant purchasers.

See TMEP §1210.05(a) for more information regarding the distinction between marks comprising deceptive matter under §2(a) and marks comprising primarily geographically deceptively misdescriptive matter under §2(e)(3), and TMEP §§1210.05(c)–(c)(ii) regarding the showing that a misrepresentation of the origin of the goods or services is likely to affect the purchaser’s decision to buy the goods or use the services.