Failure to Function Example

Love it! Here’s a great example of a term’s failure to function without widespread use on goods.

This is a big deal, because in the Merch By Amazon fight against frivolous trademarks, USPTO has typically denied Letters of Protest that did not include evidence of many competing products. But widespread use in the marketplace is not always required.

Regarding #MAGICNUMBER108, the USPTO Examining Attorney explained,

Slogans or terms that merely convey an informational message are not registrable.  In re Eagle Crest, Inc., 96 USPQ2d at 1229 (citing In re Boston Beer Co., 198 F.3d 1370, 53 USPQ2d 1056 (Fed. Cir. 1999)).  The more commonly a term or slogan is used in everyday speech, the less likely the public will use it to identify only one source and the less likely the term or slogan will be recognized by purchasers as a trademark or service mark.  See In re Hulting, 107 USPQ2d at 1177 (quoting In re Eagle Crest, Inc., 96 USPQ2d at 1229); TMEP §1202.04.

USPTO