Back to Office actions

What is a "failure to function as a trademark" refusal?

Written by Jan Buza

Co-founder of Trama

A failure to function as a trademark refusal is issued when the USPTO determines the proposed mark does not serve the fundamental trademark purpose of identifying and distinguishing the source of goods or services. The mark may be a word, phrase, or design, but it is not perceived by consumers as a brand identifier.

Common reasons include: the term is a widely used slogan or commonplace expression that consumers would not associate with any single source ("Think Different" was initially challenged on this basis), the design is purely ornamental, the mark is used in a purely informational way rather than as a brand, or the term is so commonly used in the industry that it cannot function as a source identifier for any one company.

Overcoming this refusal requires demonstrating that the mark is used in a way that consumers do associate with a single commercial source; through evidence of long and exclusive use, consumer recognition, and consistent brand-building use of the mark.

Related questions

Trademark Registration: DIY vs Professional Service

Filing for trademark registration is something anybody can do with a single online application. Many business owners, however, decide to wait with trademark registration because the process can appear quite complicated at first sight. Applying without a legal representative can be a difficult and time-consuming process. Mistakes and errors are easy to make and can lead to weak trademark protection or the rejection of your trademark registration altogether.

Stories of our clients: Scramble

”Imagine what kind of startup performance we would see with founders spending 5% of their time on fundraising instead of 50%?” Scramble, founded by Kamil Kurmakayev, presents an elegant solution for startups’ fundraising needs and it is our pleasure to protect this brand that helps others.

Trademark protection on social media: 3-Step Process

Social media is a powerful tool for growing any brand. If you're starting a business, using platforms like Facebook, LinkedIn, or Twitter can help you reach more people, build your brand's identity, and connect with your audience in unique ways. However, along with these opportunities, there's a risk of trademark infringements, which can harm your business if not handled carefully.