TTAB Decisions and Developments
Jane Shay Wald
Irell & Manella LLP
"Failure To Function" Let’s Meet At The Junction Exploring What Happened And Why When So Many Cases Lack Trademark-Ish Bases To Designate Source, Though They Try
The Board has with increasing frequency had occasion to consider whether marks fail to function as trademarks because they are terms (or images) in common usage, incapable of being source-indicators. A number of these cases have been designated non-precedential, but five have been designated precedential since October 2020. All are covered in this quarter’s column. Because failure to function refusals are growing more prevalent, this quarter’s column is dedicated to the TTAB’s most recent precedential and non-precedential "failure to function" cases.