1202.03(a) Commercial Impression
The examining attorney must determine whether the overall commercial impression of the proposed mark is that of a trademark. Matter that is purely ornamental or decorative does not function as a trademark and is unregistrable on either the Principal Register or the Supplemental Register.
The significance of the proposed mark is a factor to consider when determining whether ornamental matter serves a trademark function. Common expressions and symbols (e.g., the peace symbol, “smiley face,” or the phrase “Have a Nice Day”) are normally not perceived as marks.
The examining attorney must also consider the size, location, and dominance of the proposed mark, as applied to the goods, to determine whether ornamental matter serves a trademark function. In re Hulting, 107 USPQ2d 1175, 1177-79 (TTAB 2013); In re Lululemon Athletica Can. Inc., 105 USPQ2d 1684, 1687 (TTAB 2013) (quoting In re Right-On Co., 87 USPQ2d 1152, 1156 (TTAB 2008)); In re Dimitri’s Inc., 9 USPQ2d 1666, 1667 (TTAB 1988); In re Astro-Gods Inc., 223 USPQ 621, 623 (TTAB 1984). A small, neat, and discrete word or design feature (e.g., small design of animal over pocket or breast portion of shirt) may be likely to create the commercial impression of a trademark, whereas a larger rendition of the same matter emblazoned across the front of a garment (or a tote bag, or the like) may be perceived merely as a decorative or ornamental feature of the goods. However, a small, neat, and discrete word or design feature will not necessarily be perceived as a mark in all cases. Moreover, the size of the mark on clothing is only one consideration in determining the registrability of a mark. In re Lululemon Athletica Can. Inc., 105 USPQ2d at 1689.