BitLaw

1306.06    Uncertainty Regarding Type of Mark

When the facts in the application are insufficient to provide an adequate basis for determining whether the mark is functioning as a trademark or service mark or as a certification mark, the examining attorney should ask, pursuant to 37 C.F.R. §2.61(b), for further explanation as to the activities in which the mark is or will be used and for the disclosure of facts regarding the mark to enable a proper examination to be made.  The manner in which the activities associated with a mark are conducted is the main factor that determines the type of mark.  The conduct of parties involved with the mark evidences the relationship between the parties, and the responsibilities of each to the goods or services and to the mark.