CopyMark Law Group

An exact serial opens the live record page. Text search scans mark and owner indexes.

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CopyMark Law Group
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An exact serial opens the live record page. Text search scans mark and owner indexes.

All guidance topics

Trademark basics

Strength of markBenefits of registrationWhy hire a trademark attorneyTrademarks vs other IP

USPTO process

Trademark searchNew trademark applicationOffice Action issuesNotice of AllowanceTrademark maintenance & renewalsAssignments & ownership changesTrademark monitoringUSPTO record codes

Look up live USPTO records

Look up live trademark recordsSee Office Action issuesCheck status and deadlinesRead prosecution historySee cited conflicting marksSee goods and servicesGet attorney help
  1. Home
  2. Trademark guidance
  3. Office Action issues
  4. Failure to Function
CopyMark Law Group

Attorney advertising. No attorney-client relationship is formed until an engagement agreement is signed and a conflict check is performed.

Practice

Our services

  • New trademark application
  • Trademark search guide
  • Office Action issues
  • Notice of Allowance
  • Maintenance & renewals
  • Assignments
  • Trademark monitoring
  • Trademark records
  • Recently changed trademarks
  • Billion-dollar trademarks
  • Trademark classes

Resources

Trademark basics

  • Strength of mark
  • Benefits of registration
  • Why hire an attorney
  • Trademarks vs other IP

Contact

Get in touch

  • (312) 319-4460
  • info@copymarklaw.com
  • CopyMark LLC, 543 Brier Street, Kenilworth, Illinois 60043

Guidance

  • All guidance
  • Look up live records
  • Office Action catalog
  • Monitoring guide

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All issues overview

Likelihood of confusion

Section 2(d): Likelihood of ConfusionPrior Filed ApplicationLikelihood of Confusion Search Deferred

Section 2 refusals

Section 2(a): Immoral, Deceptive, or Scandalous Matter; False ConnectionSection 2(b): Government InsigniaSection 2(c): Name, Portrait, or Signature of a Living IndividualSection 2(e)(1): DescriptivenessSection 2(e)(2): Geographically DescriptiveSection 2(e)(3): Geographically Deceptively MisdescriptiveSection 2(e)(4): Primarily a SurnameSection 2(e)(5): Functional MatterSection 2(f): Acquired Distinctiveness

Mark function and use

Generic TermsFailure to FunctionOrnamental UseDisclaimer Requirement

Goods, services, and classification

Identification/Classification of Goods and ServicesMulti-Class Issues

Drawing and mark representation

Drawing IssueMark Description or Color ClaimTranslation

Specimens and use in commerce

Specimen Refusal

Register and filing basis

Amend to Supplemental RegisterAmend to Principal RegisterFiling Basis

Application formalities

OwnershipSignatureAddressInsufficient PaymentRequirement for U.S. CounselAdditional Information Required

Regulatory and special refusals

Foreign Registration IssuesControlled Substances Act (CSA)Food, Drug, and Cosmetic Act (FDCA)Plant Varietal Names
Mark function and use

Failure to Function — Trademark Office Action Guide

A failure-to-function refusal means the applied-for matter does not identify the source of goods or services — it may be informational, ornamental, or a common message.

What the USPTO is saying

The USPTO does not believe consumers would perceive your applied-for matter as a trademark. It appears to be a slogan, hashtag, ornamental design, or informational phrase rather than a source identifier.

Why this issue is raised

Trademark law protects marks that distinguish one seller from another. Common phrases, purely informational text, and decorative matter generally cannot serve that function.

How applicants typically overcome it

  • Submit specimens showing the mark used as a source identifier on tags, labels, or packaging — not merely as decoration.
  • Provide advertising showing the mark presented as a brand with TM notice.
  • Argue the phrase has acquired distinctiveness through exclusive use.
  • Amend the application to a mark format that functions as a trademark.

Related Office Action issues

  • Ornamental Use
  • Specimen Refusal
  • Generic Terms

Frequently asked questions

Need help responding to your Office Action?

Enter your USPTO serial number to see what issues apply to your application and get attorney-guided help with your response.

Look up your trademark(312) 319-4460trademarks@copymarklaw.com
Attorney advertising. This page is general educational information and is not legal advice. No attorney-client relationship is formed until an engagement agreement is signed and a conflict check is completed.