Some common expressions “are inherently incapable of functioning as trademarks to identify and distinguish the source of the products in connection with which they are used.” In re Eagle Crest, Inc., 96 USPQ2d 1227, 1229 (affirming refusal to register ONCE A MARINE, ALWAYS A MARINE for clothing because it would be perceived as an informational slogan “to express support, admiration or affiliation with the Marines.”); In re Volvo Cars of N. Am. Inc., 46 UPSQ2d 1455, 1460 (TTAB 1998) (“primary significance of the phrase DRIVE SAFELY, as used by applicant, and as likely to be perceived by purchasers and prospective purchasers, is merely that of an everyday, commonplace safety admonition”); In re Wakenferm Food Corp., 222 USPQ 76 (TTAB 1984) (WHY PAY MORE! for supermarket services is not registrable because the slogan does not function as a service mark).

Widely used messages will be understood as merely conveying the ordinary concept or sentiment normally associated with them, rather than serving any source-indicating function. D.C. One Wholesaler, Inc. v. Chien, 120 USPQ2d 1710, 1713 (TTAB 2016) (granting petition to cancel registration on the Supplemental Register where “the marketplace is awash in products that display the term I ♥ DC as a prominent ornamental feature of such goods”).

“The more commonly a phrase is used, the less likely that the public will use it to identify only one source and the less likely that it will be recognized by purchasers as a trademark.” In re Greenwood, 2020 USPQ2d 11439, at *6 (TTAB 2020). “Where the evidence suggests that the ordinary consumer would take the words at their ordinary meaning rather than read into them some special meaning distinguishing the goods and services from similar goods and services of others, then the words fail to function as a mark.” In re Ocean Tech., Inc., 2019 USPQ2d 450686, at *3 (TTAB 2019) (internal punctuation omitted).

Derivatives or variations of widely used messages also fail to function as marks if they convey the same or similar meaning 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 [on] 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.”).

“The critical inquiry in determining whether a proposed mark functions as a trademark is how the relevant public perceives it.” Univ. of Ky. v. 40-0, LLC, 2021 USPQ2d 253, at *13 (TTAB 2021).

HAVE A GREAT DAY is a Commonplace Message

The TTAB recently affirmed that the phrase HAVE A GREAT DAY is a commonplace message that fails to function as a trademark. D2K IP, Ser. No. 90471186 (TAB Mar. 2, 2023).

The evidence of record included examples of the phrase on coffee mugs, which, if not legally identical to cups or coffee cups, are nearly identical. Moreover, it is not necessary to show use on the specific goods identified in the application to prove the case. See In re Manco, 24 USPQ2d 1938, 1939 (TTAB 1992) (use of phrase THINK GREEN in television show broadcast, contest announcement, and news articles probative of public perception of phrase as mere informational expression for household items such as cardboard boxes, wrapping paper, and weatherstripping).

            The record evidence shows that the proposed mark comprises a phrase that is used interpersonally, professionally and as an informational slogan on goods like those identified in the application.

The TTAB concluded that the proposed mark does not function as a trademark for the goods identified in the application.

The trademark attorneys at Thomas P. Howard, LLC enforce trademarks or defend against infringement nationwide including in Colorado.