1202.17(e)(ii) Recycling Symbol
The recycling symbol typically appears on materials to indicate that they are recyclable or made from recycled matter. See, e.g., About.com, Recycling Symbols Made Easy, http://greenliving.about.com/od/recyclingwaste/tp/recycling_symbols.htm (accessed Aug. 24, 2012). However, the symbol is also used in connection with a wide assortment of goods and services in a variety of fields to indicate that the goods or services involve recycling or are otherwise environmentally friendly. See id.
Because of the widespread use of the symbol and the resulting general recognition of the symbol’s significance, the symbol is not likely to function as a source indicator. Instead, the evidence will show consumers are likely to view it as merely providing information about the goods or services, in which case a failure-to-function refusal is appropriate. Even when the symbol is displayed on clothing and fashion accessories in a manner that would normally be considered trademark use, evidence will likely show the mark will be perceived as conveying an informational message (e.g., that the wearer supports recycling or environmental awareness). See In re Eagle Crest, Inc., 96 USPQ2d 1227, 1230 (TTAB 2010) (holding that consumers would not view the “old and familiar” slogan ONCE A MARINE, ALWAYS A MARINE as a trademark indicating the source of the applicant’s clothing because they would be accustomed to seeing it displayed on clothing from many different sources, and noting that “[i]t is clear that clothing imprinted with this slogan would be purchased by consumers for the message it conveys”). The symbol will usually also have descriptive significance as applied to the relevant goods or services.