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Trademark Applications - Common Causes for Refusal
August 28, 2012
MyTechnologyLawyer
IP Management - Trademarks
A federal trademark application may be rejected on formal or substantive grounds. A formal rejection relates to a defect in the form of the application and can be rectified by amendment. A substantive rejection is based on one of the following statutory provisions:
Owned by Another
The registrant of a mark must be its owner. The entity which first uses the mark in commerce has the exclusive right of ownership.
A Functional Feature
If a feature of a product is necessary for the product to function, and is so unique that no alternate functional configurations are possible, the feature may not be registered as a mark.
Deceptive or Scandalous
A deceptive or scandalous mark may not be registered.
Disparaging or Suggests a False Connection
A mark may not disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs or national symbols (of the United States or foreign countries) or bring them into contempt or disrepute.
A Government Insignia
A mark may not consist of, or simulate, the flag, coat of arms, or any insignia of the United States or any foreign nation, or any U.S. state or municipality.
A Name of an Individual
A mark may not consist of the name, portrait, or signature of a living individual without his written consent.
A Surname
A mark which is primarily a surname is not registrable, unless it has a secondary meaning.
Confusingly Similar to Another Mark
A mark must not be so similar to another mark that it causes confusion, mistake, or deception.
Descriptive
If a mark is merely descriptive of the nature, quality, characteristics, ingredients, or geographic origin of the goods or services, it may not be registered.
Deceptively Misdescriptive
Deceptively misdescriptive marks cannot be registered; a mark is deceptively misdescriptive if the deception is material to the product purchasing decision.
Not Functional as a Trademark
A mark must identify the source of the goods or services.
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