TMEP 1202.17(c): Failure to Function

October 2017 Edition of the TMEP

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1202.17(c)    Failure to Function

The USPTO will not register a mark unless it functions as a mark. See 15 U.S.C. §§1051, 1052, 1053, 1127; In re Bose Corp., 192 USPQ 213, 215 (C.C.P.A. 1976) ("Before there can be registration, there must be a trademark...."); In re Int’l Spike, Inc., 196 USPQ 447, 449 (TTAB 1977) ("Registration presupposes the existence of a trademark to be registered."); TMEP §1202. That is, the mark must serve as an indicator of the source of the goods or services, identifying and distinguishing them from those of others. See 15 U.S.C. §1127; TMEP §1202. Not every designation that a party places on goods or packaging, or uses in connection with services, necessarily performs these source-indicating functions, regardless of the party’s intentions when adopting the designation. In re Eagle Crest, Inc., 96 USPQ2d 1227, 1229 (TTAB 2010); In re Vertex Grp., LLC, 89 USPQ2d 1694, 1701 (TTAB 2009) ("As is the case with any trademark, mere intent that a word, name, symbol or device function as a trademark or service mark is not enough in and of itself."). Some designations can never serve as a source indicator. See In re Eagle Crest, Inc., 96 USPQ2d at 1229; Am. Velcro, Inc. v. Charles Mayer Studios, Inc., 177 USPQ 149, 154 (TTAB 1973).