TMEP 1202.17(c)(i): Determining Whether a Universal Symbol Functions as a Source Indicator

October 2017 Edition of the TMEP

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1202.17(c)(i)    Determining Whether a Universal Symbol Functions as a Source Indicator

The determination as to whether a universal symbol in a mark functions as a source indicator involves considering the significance of the symbol, the nature of the symbol’s use in the relevant marketplace, and the impression created when the mark is used in connection with the identified goods or services. See In re Eagle Crest, Inc., 96 USPQ 1227, 1229 (TTAB 2010) (noting that, to determine how a designation would be perceived by the relevant public, the Board "look[s] to the specimens and other evidence of record showing how the designation is actually used in the marketplace"); In re Aerospace Optics, Inc., 78 USPQ2d 1861, 1862 (TTAB 2006) ("A critical element in determining whether matter sought to be registered is a trademark is the impression the matter makes on the relevant public. Thus... the critical inquiry is whether the asserted mark would be perceived as a source indicator...."); In re Volvo Cars of N. Am. Inc., 46 USPQ2d 1455, 1459 (TTAB 1998) ("In order to assess the commercial impact created by the designation... we look to the specimens and other materials which show how the mark is actually used in the marketplace.").

Relevant evidence of a symbol’s significance and usual manner of use includes the resources referenced in TMEP §1202.17(b)(i), any other competent materials indicating the meaning of the symbol, and Internet excerpts or trade matter showing the symbol being used in a particular field or context, or in connection with the relevant goods or services.

Weighing these considerations in view of the available facts and evidence may lead the examining attorney to the conclusion that the mark does not serve as a source indicator, but instead fails to function because it (1) imparts information about the goods or services, (2) conveys an informational message (though not necessarily about the goods or services themselves), or (3) serves only as ornamentation on the goods or services. See TMEP §§1202.17(c)(i)(A)-(c)(i)(B).