There are lots of things that cannot be protected through trademark. 
A trademark is not merely a collection of words and/or pictures that represent you.  It must uniquely, yet legally, identify your product or service.  Whether shopping for wine, beef jerky, clothing, or cell phone service, any person on the street should be able to identify your product/service through your trademark: your distinctive collection of words and/or designs.

Like the Nike Swoosh immediately evokes images of athletic shoes and clothing, and McDonald’s golden arches conjure the smell of frying fries, seeing your trademark should immediately make your product/service come to your customer’s mind like an old friend that says “Hey, it’s me!”

So when you are deciding on your product/service or company name, keep in mind the following list of things generally not trademark-able:

1)      Merely Descriptive Terms

Words such as incorporation and company, or words that describe your industry, cannot be trademarked.   They can be included in the overall registration, but they are merely descriptive and give no strength to your overall trademark because everybody must be free to use them.

For example, in the trademark “Xeloshi Clothing Shop”, clothing cannot be protected because it merely describes the services within the industry, and shop likewise merely describes a retail venue where clothing can be found for purchase.  Neither term make the name unique.  

2)      Flags and Insignias

You can’t use any nation’s flag, designs, or words protected by any nation’s law.  You could not protect, for example, U.S. Dept. of Navy Clothing Company with an American flag on it.

3)      Someone Else’s Legal Name or Picture

Trademarks for CHERE and SHER in 003 were rejected based on the singer’s name CHER in 041, even though the goods/services were in vastly different class codes, SHERE, however was registered.  You might not be able to get the name for Ted’s Clothing Emporium unless you were Ted.

4)      Someone Else’s Trademark

If you have a fan club for the #1 hit TV show of the season, you cannot refer to that trademarked TV show by name in your own trademark for fan club services.  If you sell parts for Mercedes, you cannot use Mercedes in your trademark name or product description.

Sometimes even a dead trademark deemed to be still “famous” can be un-trademark-able.

5)      Merely Ornamental Slogans or Designs

I see this primarily in the USA where the registration process requires the trademark owner to submit a “sample” of the trademark being used in commerce (very few countries require samples).

Standard Scenario: 
  • You have a great slogan or design.
  •  You buy a blank t-shirt (keychain, tote bag, coffee mug, wine bottle) wholesale and print the slogan on them to resell.
  • You want to protect your really cool slogan and file a trademark application in class 025 for clothing.
  • Your application is rejected.   Failure to function as a mark…merely ornamental.  You are not the source of goods.

6)      Dirty Words

You can’t register most bad words, though the definition of “scandalous and immoral” in USPTO’S eyes has changed over the years.  Just for fun I did a search in TESS on the term “ass” which has been acceptable since 1971 but “shit” still is not as of June 2015.  The details of this search are the subject of my next blog.

I AM THE CAUSE OF THIS SHIT trademark # 86403924 was rejected for BOTH bad words and merely ornamental.

The revocation by USPTO of the Redskins trademark in USA for a football team, having recently been deemed offensive to Native American Indians, is presently the subject of heated court battles and clearly exemplifies this change in trademark morality.

7)      Informational Material

Some trademark owners like to file their actual label (called Trade Dress).  All the informative information that applies to the public domain (such as a nutritional labeling) is not trademark-able.

8)      Cities In Which You Don’t Live

You cannot claim a geographical location that does not pertain to you.   You cannot use New York in your trademark unless you are located in New York.  A lot of people like to argue that their shop/soap is “in the style of”...Paris, for example, but this claim will not fly in many countries.

In some countries you can’t use a geographical indicator at all.  I recently experienced a rejection to a South Korean application based on the use of U.S.A. in the logo, though the KIPO database does show registration of trademarks using a country in the name/logo, many of which are still live. 

9)      Domain Names

URL’s on empty sites are not trademark-able.  You can trademark your domain name if it identifies your product or service.  The information before and after the “.” dots does not need to be included.  So unless your trademark is used routinely with the extension ( .com, .org, .tv, etc.), you do not need to include it in your application. 

A retail store such as Walmart might use Walmart.com to differentiate its brick and mortar stores from its on-line stores.  Walmart.com registered in 2012 #4180335.

As my business is strictly virtual, I considered marketing myself as “E-TrademarkUniverse.com”, and then requesting a pseudo mark of just “E-Trademark Universe”.  However, I registered just “E-Trademark Universe”, and “www.E-TrademarkUniverse.com” is covered by default.

These are just a few broad examples, and the application of these rules/laws is very different in every country.  Your trademark professional can help guide you.
 


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