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Precedential No. 36: TTAB Affirms Failure-to-Function Refusal of TEXAS LOVE for T-Shirts, Rejects Equal Protection Argument

The Board upheld a failure-to-function refusal of TEXAS LOVE for "hats, shirts," finding that the phrase "only serves as an expression of a concept or sentiment, and is widely used by third parties, [and so] it would not be perceived as an indicator of source in the context of Applicant?s identified goods." Applicant insisted that the refusal violates the Equal Protection Clause of the U.S. Constitution because the USPTO treats Texas citizens differently from those of Florida, California, Nevada, Maine and Hawaii. The Board showed no love for that argument. In re Texas With Love, LLC, Serial No. 87793802 (October 29, 2020) [precedential] (Opinion by Judge Michael B. Adlin).Failure-to-Function: Although applicant used the phrase in the manner of a trademark by displaying it in proximity to the hats and shirts offered at its website, the Board observed that "[n]ot every word, name, phrase, symbol or design, or combination thereof which appears on a product functions as a trademark," and "[m]ere intent that a phrase function as a trademark is not enough in and of itself to make it a trademark...continue to full post

Full post as published by The TTABlog on November 02, 2020 (boomark / email).