Catchy phrases don’t always function as trademarks. Melissa Benson wanted to trademark her slogan “Still Spooning”. It appeared on her interesting mix of goods, flatware and fishing lures. Milk & Honey LLC, who sells houseware using the same trademark, opposed the registration. The Trademark Trial and Appeal Board didn’t accept Milk & Honey’s objection based on Benson’s mark being merely a descriptive argument. But, the Board accepted Milk & Honey’s second argument that the words didn’t function as a mark. The Board looked at Benson’s specimens of use and determined that the consuming public would perceive the words as ornamental and reference to the engraving on the goods. So the opposition was sustained and the mark wasn’t registered.

WHY YOU SHOULD KNOW THIS. Look at the photo accompanying this post. This is a good example of an ornamental use that (alone) is not trademark use. Not every designation that is used in connection with goods or services functions as a trademark. Words that are informational in nature, or that express support, admiration or affiliation don’t function as trademarks and so can’t be registered. There can be a fine line between functioning and not functioning as a trademark. So, each trademark has to be evaluated on its own basis.

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