1202.17(b) Reviewing Marks Containing Symbols
For each application, the examining attorney must determine whether the mark contains a universal symbol. Some universal symbols, such as the recycling symbol, are immediately identifiable. Others may not be, and applications for marks containing a symbol do not always identify the symbol, explain its significance, or indicate whether it is shown in a stylized or unusual form.
1202.17(b)(i) Identifying Universal Symbols in Marks
If a mark includes or consists of a symbol (or an unfamiliar symbol-like element), the examining attorney should review the application for any information the applicant may have provided about the symbol and ensure that an accurate description is included in the record. See TMEP §§ 808.03, 808.03(b), 808.03(d). The examining attorney may also use the mark’s assigned design codes to determine the name of the symbol and to search the Trademark database for applications and registrations that describe the symbol. See TMEP §104. If the design codes assigned to the mark do not accurately reflect the significant elements of the mark, the examining attorney should ensure that the design codes are updated so that the correct codes are listed. See TMEP §808.03(f). After identifying the symbol, the examining attorney may find additional information about it by using Internet search engines or symbol reference websites.
Even without the name of the symbol, the examining attorney may be able to find information about it by entering a textual description of it in an Internet search engine. For instance, one could find information about the recycling symbol, even without knowing the name of the symbol, by using the following textual description in a search engine query: "green curved arrows triangle." Additionally, the examining attorney could consult a symbol reference website that provides a means of searching based on a symbol’s graphical characteristics. See Symbols.com, Graphic Index, http://www.symbols.com/graphic-index/ (accessed Aug. 24, 2012).
In addition, the Trademark Law Library holds a number of reference books about symbols and their meaning, and its librarians are available to assist USPTO personnel in researching questions regarding the identity, significance, and use of symbols. Furthermore, under Trademark Rule 2.61(b), the examining attorney may require the applicant to provide additional information about an unfamiliar symbol in a mark. 37 C.F.R. §2.61(b).
The examining attorney’s research may show that a symbol (or symbol-like element) in a mark is not a universal symbol. However, other symbols, symbol-like elements, and designs that are not universal symbols may nonetheless be perceived only as informational matter and thus fail to function as marks. In these instances, the examining attorney need not take any further action with respect to the universal symbol analysis, but should ensure that the application record contains a mark description that accurately describes the significant elements of the mark. TMEP §§ 808.01, 808.02, 808.03(b). The examining attorney should otherwise review the application according to standard USPTO practice and determine whether it complies with all applicable trademark statutes and rules.
1202.17(b)(ii) Marks Displaying an Unusual Depiction of a Universal Symbol
If the mark contains a universal symbol, the examining attorney must determine whether the mark displays the symbol in the usual manner or otherwise features an accurate depiction of the symbol. This may be done by comparing the symbol in the mark with any accurate depictions of the symbol the examining attorney finds while researching the symbol.
Generally, a universal symbol in a mark should be considered registrable matter if it is highly stylized, if it incorporates elements that are not usually in the symbol, or if it is integrated with other matter in the mark, and, as a result, a distinctive commercial impression separate and apart from the symbol’s usual significance is created or a source-indicating unitary whole is formed. Cf. In re LRC Prods. Ltd., 223 USPQ 1250, 1252 (TTAB 1984) (noting that "where designs or representations were more realistic and where the design left no doubt about the depiction of a central feature or characteristic of the goods or services," the Board has found that such designs and representations are merely descriptive); TMEP §1213.03(c) ("No disclaimer of highly stylized pictorial representations of descriptive matter should be required[,] because the design element creates a distinct commercial impression."); TMEP §1213.05(f) ("The visual presentation of a mark may be such that the words and/or designs form a unitary whole. In such a case, disclaimer of individual nondistinctive elements is unnecessary."); TMEP §1213.05(g)(iv) ("If literal and design elements in a mark are so merged together that they cannot be divided or regarded as separable elements, these elements may be considered unitary."). However, displaying an accurately depicted universal symbol as a replacement for a letter in a mark’s literal element normally will not change the symbol’s usual impression (or create a unitary whole), nor will minor alterations to the symbol, such as slight stylizations or nondistinctive changes to color scheme or proportions. Cf. TMEP §§1213.03(c), 1213.05(g).
1202.17(b)(iii) Marks Displaying an Accurate Depiction of a Universal Symbol
If the mark displays the universal symbol in the usual manner, or otherwise features an accurate depiction of the symbol, the examining attorney must determine whether, in view of the identified goods or services, it is necessary to issue a refusal or disclaimer requirement based on failure to function, mere descriptiveness, deceptive misdescriptiveness, or deceptiveness grounds. See TMEP §§ 1202.17(c)(i), 1202.17(d)(i)-(d)(ii).