In her article, “Using Failure to Function Doctrine to Protect Free Speech and Competition in Trademark Law,” Professor Lisa P. Ramsey of the University of San Diego School of Law responds to Professor Alexandra Roberts’ paper “Trademark Failure-to-Function” by following her advice “to focus more attention on whether matter claimed as a mark is actually used and perceived as a trademark that identifies and distinguishes products and indicates their source.”

I agree with her that failure to function doctrine should be used more frequently to protect free speech and competition in trademark law. Below I explain in detail how the USPTO and courts can use this trademark doctrine to safeguard the public domain—the words and symbols companies can use in connection with the advertising and sale of their products—against efforts to claim trademark rights in memes, offensive terms and symbols, words and designs commonly used in an industry, and other widely used messages and product features that were inherently valuable in the marketplace before people tried to register and protect them as trademarks.

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TTABlogger comment: In the past year the TTAB has issued a half-dozen precedential failure-to-function decisions.

Text Copyright John L. Welch 2020.