1203.02(d)(ii) Mere Personal Preference
The types of objective criteria discussed above can be contrasted with mere personal preferences for which the requisite evidentiary support generally cannot be found to establish materiality. For example, SPEARMINT for chewing gum, LAVENDER for dish soap, and BLUE for bicycles refer to flavor, scent, and color features that, in those contexts, most likely reflect mere personal preferences which would not be considered material for purposes of a deceptiveness refusal.
Similarly, personal preferences regarding types of cuisine served at restaurants (e.g. , SEAFOOD or PIZZA) generally do not establish materiality absent evidence that the type of cuisine meets some objective criteria more in line with those listed above, such as for VEGAN or KOSHER.
Whether the requisite evidentiary support can be found to establish that the use of such terms in connection with goods/services that do not contain or feature the characteristic is deceptively misdescriptive under §2(e)(1) must be determined on a case-by-case basis.