What is a "failure to function as a trademark" refusal?

Photo of Jan Buza

Written by Jan Buza

Co-founder of Trama

A "failure to function as a trademark" refusal occurs when the USPTO determines that the proposed trademark does not serve the essential trademark function of identifying and distinguishing the source of goods or services. In other words, the refusal is based on the examiner's belief that the proposed mark is not being used, or is not capable of being used, as a source identifier in the marketplace.

Marks that are mostly informational, like many slogans and other similar statements, are often at high risk of receiving this office action. To overcome it, the applicant would have to prove the mark is capable of serving as an identification of a source of goods or services, which can be challenging.

Advice icon

Haven't found what you are looking for?

Our team of experienced trademark attorneys is here to help you! Simply send us an email outlining your request and we'll be happy to assist you.