1202.04(b) Widely Used Messages

Matter that merely conveys ordinary, familiar, or generally understood concepts or sentiments, as well as social, political, religious, or similar informational messages in common use, would not be perceived as indicating source and thus is not registrable. In re Team Jesus, LLC, 2020 USPQ2d 11489, at *3 (TTAB 2020) (citing In re Mayweather Promotions, LLC, 2020 USPQ2d 11298, at *1 (TTAB 2020)). Consumers understand such widely used, commonplace messages as conveying "the ordinary concept or sentiment normally associated with [the message], rather than serving any source-indicating function." Univ. of Ky. v. 40-0, LLC, 2021 USPQ2d 253, at *33-34 (TTAB 2021). The more commonly a term or phrase is used in everyday speech or in an associational or affinitive manner by various sources, the less likely consumers will perceive the matter as a trademark or service mark for any goods and services. E.g., In re GO & Assocs., LLC, 90 F.4th 1354, 1356-1357, 2024 USPQ2d 616, at *3 (Fed. Cir. 2024); In re Greenwood, 2020 USPQ2d 11439, at *2-3 (TTAB 2020) (citing In re Peace Love World Live, LLC, 127 USPQ2d 1400, 1402 (TTAB 2018)); In re DePorter, 129 USPQ2d 1298, 1303 (TTAB 2019) (quoting In re Hulting, 107 USPQ2d 1175, 1177 (TTAB 2013)); In re Wal-Mart Stores, Inc., 129 USPQ2d 1148, 1153 (TTAB 2019); see also In re Volvo Cars of N. Am. Inc., 46 USPQ2d 1455, 1460 (TTAB 1998) (holding DRIVE SAFELY not to function as a mark when used in connection with automobiles and structural parts therefor because it would be perceived merely as an everyday, commonplace safety admonition); In re Manco, 24 USPQ2d 1938, 1942 (TTAB 1992) (holding THINK GREEN for products advertised to be recyclable and to promote energy conservation not to function as a mark because it merely conveys a message of environmental awareness or ecological consciousness); cf. In re Peace Love World Live, LLC, 127 USPQ2d 1400, 1403 (TTAB 2018) (I LOVE YOU, appearing on bracelets, would be seen as a term of endearment rather than a source-identifying trademark). Thus, where the evidence suggests the "ordinary consumer would take the words at their ordinary meaning rather than read into them some special meaning distinguishing the goods and/or services from similar goods and/or services of others, then the words fail to function as a mark." In re Lizzo LLC, 2023 USPQ2d 139, at *3 (TTAB 2023) (quoting In re Ocean Tech., Inc., 2019 USPQ2d 450686, at *3 (TTAB 2019)).

Messages that are used by a variety of sources to convey social, political, religious, or similar sentiments or ideas are likely to be perceived as an expression of support for, or affiliation or affinity with, the ideas embodied in the message rather than as a mark that indicates a single source of the goods or services. See In re GO & Assocs., LLC, 90 F.4th at 1356-1357, 2024 USPQ2d 616, at *3-4; In re Team Jesus LLC, 2020 USPQ2d 11489, at *6; In re DePorter, 129 USPQ2d at 1299. Furthermore, goods that feature such messages are typically purchased because of the expressive sentiment conveyed by the message and not because they serve as a means for the consumer to identify and distinguish the applicant’s goods or services from those of others. For example, the proposed mark ONCE A MARINE, ALWAYS A MARINE, for clothing, was found not to function as a mark because the evidence showed that it was a common motto used by, and in support of, the U.S. Marines. In re Eagle Crest, Inc., 96 USPQ2d at 1232. Similarly, the proposed mark NO MORE RINOS!, for various goods, including bumper stickers, signs, and t-shirts, was found not to function as a mark because the evidence showed that consumers were accustomed to seeing this well-known political slogan on these types of goods from a variety of different sources. In re Hulting, 107 USPQ2d at 1179. Additionally, the proposed mark TEAM JESUS for clothing and religious educational and entertainment services was held not to function as a mark because the evidence showed that due to the nature and ubiquity of the phrase, including on apparel from many sources, consumers would perceive the wording merely as a well-recognized message of Christian affiliation. In re Team Jesus LLC, 2020 USPQ2d 11489, at *1, *3-6. Lastly, the proposed mark FUCK, for various carrying cases, jewelry, sports and other carrying bags, and various retail, marketing, and advertising services for such consumer goods, was held not to function as a mark because substantial dictionary, third-party use on the same and other consumer and household goods, and other internet evidence showed ubiquitous use of the word in its ordinary meaning, the applicant stated "that he intend[ed] to use FUCK as the word is commonly understood," and consumers would merely perceive the term as such. In re Brunetti, 2022 USPQ2d 764, at *39, *43-44 (TTAB 2022), appeal docketed, No. 23-1539 (Fed. Cir. Feb. 27, 2023).

Derivatives or variations of widely used messages also fail to function as marks if they convey the same or similar type of information or sentiment as the original wording. See D.C. One Wholesaler, Inc. v. Chien, 120 USPQ2d 1710, 1716 (TTAB 2016) (noting that the informational significance of I ♥ DC was "reinforced by the fact that similar expressions in the form of ‘I ♥__’ have also been widely used to express such enthusiasms with respect to other places and things"); In re Remington Prods., Inc., 3 USPQ2d 1714, 1715 (TTAB 1987) (finding PROUDLY MADE IN THE USA informational in nature; the addition of "Proudly" before the common phrase "Made in USA" merely added "further information about the state of mind of the manufacturer and/or its employees in connection with the production of the goods"); In re Melville Corp., 228 USPQ 970, 971 (TTAB 1986) (finding BRAND NAMES FOR LESS failed to function as a mark based evidence of widespread use of similar marketing phrases, noting that "[t]he fact that applicant may convey similar information in a slightly different way than others is not determinative.").

Evidence demonstrating that the public would perceive the wording merely as conveying the ordinary meaning of the message, or enthusiasm for, affinity with, or endorsement of the message, when encountering it in the context of the applicant’s goods or services, supports this refusal. "When assessing such evidence, the focus is not only on common use of the phrase, but on whether the various uses inform how the phrase would be perceived by consumers of the identified goods or services." In re Black Card LLC, 2023 USPQ2d 1376, at *4 (TTAB 2023). When supporting the refusal with evidence showing use of the term or expression across a variety of contexts, the evidence must demonstrate that a single, commonly understood sentiment or meaning exists, such that consumers will view the phrase as conveying that same sentiment or meaning in the context of the applicant’s goods or services. Id. (reversing a failure-to-function refusal because the evidence showed that the phrase FOLLOW THE LEADER has different meanings in different contexts such that the Board could not reasonably infer a commonly understood meaning applicable to applicant's services that would render it incapable of being perceived as a source indicator for those services). In addition to dictionary or encyclopedia entries showing the meaning or significance of wording, supporting evidence may include materials (e.g., website pages, Internet search results lists if sufficient surrounding text is included, social-media pages, product fact sheets, and other promotional materials) showing the applicant’s manner of use and the manner of use by third parties. See, e.g., In re Wal-Mart Stores, Inc., 129 USPQ2d at 1153 (finding that INVESTING IN AMERICAN JOBS failed to function as a mark for various retail, grocery, and convenience store services and promoting public awareness of goods made or assembled by American workers, because third-party product sales webpages and media/news articles showed "third parties in several industries commonly use the phrase . . . to convey the same general idea (supporting American jobs)" that applicant did); D.C. One Wholesaler, Inc., 120 USPQ2d at 1716 (finding that I ♥ DC failed to function as a mark for clothing items, because the evidence showed the wording had "been widely used, over a long period of time and by a large number of merchandisers as an expression of enthusiasm, affection or affiliation with respect to the city of Washington, D.C.").

The size, location, dominance, and significance of the wording as it is used in connection with the goods or services should also be considered to determine if any of these elements further support the perception of the wording merely as an informational message rather than as indicating the source of goods or services. In re Hulting, 107 USPQ2d at 1179 (comparing In re Lululemon Athletica Can. Inc., 105 USPQ2d 1684, 1689 (TTAB 2013)). For example, evidence of use of the wording as adornment, by either the applicant or third parties, may support a determination that a proposed mark does not convey the commercial impression of a trademark that identifies a single source. See In re Team Jesus LLC, 2020 USPQ2d 11489, at *5-6; In re Hulting, 107 USPQ2d at 1179-80; see also D.C. One Wholesaler, Inc., 120 USPQ2d at 1716 (noting that the marketplace is inundated with products featuring the wording "as a prominent ornamental feature of such goods, in such a way that the display itself is an important component of the product and customers purchase the product precisely because it is ornamented with a display of the term in an informational manner, not associated with a particular source"). In addition, use of the matter in a less prominent manner than other clear source identifiers may also support the conclusion that the matter will be perceived as merely conveying an informational message. Cf. In re Duvernoy & Sons, Inc., 212 F.2d 202, 101 USPQ 288 (C.C.P.A. 1954) (finding that the phrase "Consistently Superior," which appeared less prominently than appellant’s trade name, was "merely an adjunct thereto, operating in the shadow thereof, to indicate to purchasers that appellant’s goods are always superior in quality" and was "merely a statement of fact which should be available to anyone who feels that his products are, in fact or belief, consistently superior, and wishes to so advise the public").