–Susan Perera, Attorney

Every once in awhile I run across a product and find myself wondering… why did they name it this?  I recently ran across the Duck Tape brand shown below.  My first reaction was “duck” is a commonly misused term to identify what should be called “duct” tape, and this brand owner interestingly chose to use that common misconception to create a brand.

Surprisingly, there are quite a few online resources that assert the product was first called “duck tape” when it was developed during World War II as a waterproof tape for military purposes, that repelled water like a duck.

However when the Duck Tape trademark was registered in 1983, it didn’t identify that the goods were previously commonly referred to as “duck tape.”  Rather the application originally listed its goods as “elongated tape having a pressure sensitive adhesive on one side; duct tape.” (Currently the identification of goods does not include the term “duct tape.”)

The mark was initially refused registration on the grounds the mark was merely descriptive of the goods, namely, duct tape, and “duck” was a phonetic equivalent of “duct.”  However, the applicant was able to argue around this refusal, putting forth arguments that the “duck” and “duct” are not equivalents.

Putting aside its prosecution history, what do you think of the naming choice?  Do you think “duck tape” is descriptive of the product, or maybe you would go as far as calling it… generic?   And, what are your thoughts about using a common misconception as a brand?