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Non-Functioning Trademark Names

Speaking with a trademark attorney can provide you with guidance in selecting the best name for your product or business. Many people may, however, choose to ignore legal advice and proceed with a name that is likely to be rejected by the USPTO. One common method of rejection is on the grounds that your name has failed to function as a trademark. A “Failure to Function” rejection is common when applicants choose popular or famous names that already exist, even if they are not utilized in the market.

This can happen if you choose a name that is a commonly used slogan or is representative of an already established movement. As the goal of a trademark is to indicate the source of a particular good or service and distinguish them from others in the market, this cannot be done if the public has a separate association in mind in relation to the name of your product or business. For this reason, names comprised of a phrase seeking to promote public awareness, such as “INVESTING IN AMERICAN JOBS” are likely to be rejected. Your trademark name should be unique to your product or service, and not be comprised of terms and phrases that merely convey an informational message.

This also applies to names in association with social, political, or religious movements. For example, you cannot easily trademark a product “BLM”, because BLM already exists as a political and social movement known as Black Lives Matter. It may, however, be possible to register a trademark with the initials BLM if your trademark includes the full name. For example, “Balance Living Management” would be likely to qualify for registration (if it does not already exist).

With the help of your trademarked name, the consuming public should be able to identify your products/services as coming from a single source. Names that copy or make references to movements, such as “BLM”, suggests to the public that your product or service was sponsored by the movement, which can be deceptive and cause confusion. It will be easier to register and protect a unique name that has no prior association with any kind of message or movement unrelated to your product/service. If you choose to continue with a name that may likely receive a failure to function rejection, be sure to have the help of a trademark attorney to ensure the greatest possible odds of securing a registration.

Written by: David Sacasa Ⓒ 2021 Alcoba Law Group P.A.
Picture Credits: Miri Paez Bolet.
Reviewed by: Ruben Alcoba

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