Trademark Terms

Here’s a glossary of trademark terms you need to understand to make sense of fighting frivolous trademarks. See all other posts regarding trademarks here.

Trademark Terms

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There are 3 topics in this directory beginning with the letter F.
Failure to Function
Failure to Function as a source indicator (brand name). In a nutshell, "failure to function" is talking about scenarios like this: T-shirt displaying "World's Best Mom" -- nobody thinks "Best Mom Ever" is the brand that produced the shirt; Garlic press imprinted with "Stainless Steel" -- the consumer will most likely think the press is made of stainless steel, not that a brand named "Stainless Steel" produced it. When a "trademark" term is not likely to be perceived by the purchasing public as the producer or source of the product, USPTO says the term "fails to function as a source indicator." To read a lovely, insightful, and long explanation of how this has become a huge issue in the trademark world, see this Iowa Law Review article by Dr. Alexandra J. Roberts. (And, to see how print-on-demand sellers influenced this article, click on Footnotes 31 and 207!)  
Submitted by: Morgan Reece

Fake Specimen Report

If the specimen is a mock-up, a fake specimen report should be submitted (in addition to a Letter of Protest, if appropriate).

Submitted by: Morgan Reece

Frivolous Trademark

Potentially overreaching trademark applications or registrations used to initiate frivolous claims of infringement.

These occur in every industry. Examples: STAINLESS STEEL (for garlic presses); ONCE A MARINE, ALWAYS A MARINE (for clothing).

“Frivolous Trademark” is a subjective term coined in the Amazon seller communities. Its use in this or other training materials should not be construed to suggest wrongful intent on the part of trademark applicants or owners.

Submitted by: Morgan Reece


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