Maybe I’m relying on anecdata but I think I’m seeing more “Failure-to-Function” fact patterns lately, both in my practice and in TTAB decisions. It could be because trademark lawyers encourage clients to protect everything, so in response, clients attempt to protect everything (including taglines, slogans, catch-phrases, etc.). The failure-to-function issue turns on whether, given the context in which consumers encounter the term, they perceive a term as a source indicator, or as ornamentation of or information about the goods/services. You can read the two recent TTAB decisions below, but sometimes it’s easier to just show than to explain. In this specimen, OOPS! WRONG ANSWER does not function as a trademark, but rather provides information about the service (a trivia quiz), so this application was denied:
In contrast, here, while SMILE MORE appears as ornamentation on the t-shirt itself, it also functions as a source indicator, identifying the store on the top of the screen.
