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Trademark Information
The information provided below is for general informational purposes only and does not constitute legal advice. For legal guidance specific to your situation, please consult a qualified attorney.
Ornamental Use vs. Source Identifying Use
What is Ornamental Use and Why Does it Matter?
In order to obtain a US trademark registration, an applicant is required to submit evidence showing use of the mark in connection with the applied-for goods and/or services (called a “specimen of use”). One of the requirements of the specimen of use is that it must show the mark being used as a source identifier for the applied-for goods/services. Not all uses of a mark serve as a source identifier. A specimen of use that shows use of a mark in a manner that will be perceived by a consumer as “merely ornamental or decorative” and not as a source identifier will be rejected by the USPTO.
When evaluating ornamental vs. source identifying use, the USPTO considers the size, location, and dominance of the mark on the goods. A small, discrete word or design feature (e.g., small design of animal over the breast pocket area of a shirt) is likely to be deemed source identifying, while a larger rendition of the same matter emblazoned across the front of apparel or accessories (e.g., a shirt, pants, or handbag) is likely to be deemed ornamental. Although ornamental vs. source identifying use is evaluated on a case-by-case basis, for several categories of goods, there are mark locations that the USPTO consistently deems ornamental use and mark locations that the USPTO consistently deems as a source identifying use:
Examples of Ornamental Use
The following are examples of displays of a mark deemed ornamental by the USPTO.
Examples of Trademark Use
The following are examples of displays of a mark that would be considered “use in commerce” on types of goods that are often the subject of ornamental use refusals.
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Include a tag or label bearing the mark attached to a garment. Examples are shown below. This solution applies to any type of goods.
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Shirts, Sweatshirts, Jackets & Sweaters. Provide a small version of the mark located in the breast area, on a sleeve, or on a collar. See examples below.
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Hats. Provide a small representation of the mark affixed to the brim of a hat or attached to the side, inside, or rear of a hat. See examples below.
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Dishes and Drinkware. Provide a small stamp or sticker bearing the mark affixed to the back of a plate or bottom of a mug. See examples below.
If you have questions regarding ornamental vs. source identifying use of a mark, please do not hesitate to contact us.
