1202.17(c)(ii) Mark Consists Entirely of a Universal Symbol that Fails to Function
If a mark consists entirely of a universal symbol and the examining attorney determines that the universal symbol fails to function as a source indicator for the identified goods, the examining attorney must issue a refusal under Trademark Act Sections 1, 2, and 45. 15 U.S.C. §§1051, 1052, 1127; see In re Aerospace Optics, Inc., 78 USPQ2d 1861, 1863 (TTAB 2006) ("It is well established that the refusal of failure to function is properly based on Sections 1, 2 and 45 of the Act."). For service marks, the refusal is based on Trademark Act Sections 1, 2, 3, and 45. 15 U.S.C. §§1051, 1052, 1053, 1127. For applications seeking registration on the Supplemental Register, the statutory basis for the failure-to-function refusal is Trademark Act Sections 23 and 45. 15 U.S.C. §§1091, 1127; see TMEP §1202.
When issuing a failure-to-function refusal, the examining attorney must explain the particular reasons the mark does not function as a trademark or service mark and provide sufficient evidence in support of the explanation. See In re Eagle Crest, Inc., 96 USPQ2d 1227, 1232 (TTAB 2010) (finding that the examining attorney had "shown prima facie that the slogan [ONCE A MARINE, ALWAYS A MARINE] would be perceived solely as informational matter rather than as a trademark and applicant [had] submitted no evidence to rebut that showing"); TMEP §§ 12.2, 1301.02(a). See TMEP §§ 1202.17(b)(i) and 1202.17(c)(i) for further discussion of evidence.