A common term or phrase used to convey ordinary, familiar, or generally understood concepts or sentiments may fail to function as a trademark because it would not be perceived by consumers as identifying the source of goods or services. In re Brunetti, 2022 USPQ2d 764, at *12 (TTAB 2022). “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 … [service mark].” Id. (citing In re Eagle Crest, Inc., 96 USPQ2d 1227, 1229 (TTAB 2010)). “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 … [services] from similar … [services] of other[s], then the words fail to function as a mark.” In re Ocean Tech., Inc., 2019 USPQ2d 450686, at *3 (TTAB 2019) (internal punctuation omitted). But see In re Lizzo LLC, 2023 USPQ2d 139, at *39 (TTAB 2023) (“[T]he totality of the evidence of record … undercuts a finding that 100% THAT BITCH is a commonplace expression, so widely used by third parties that consumers would not perceive it as indicating the source of the goods identified thereby.”).

Evidence of use of a phrase by third parties in connection with the particular goods or services at issue can support a finding that the phrase conveys a commonly understood sentiment and does not serve to signify source in relation to those goods or services. In re Team Jesus LLC, 2020 USPQ2d 11489, *5 (TTAB 2020) (relying in part on evidence showing TEAM JESUS on t-shirts to find that the phrase had a meaning in relation to clothing); D.C. One Wholesaler, Inc. v. Chien, 120 USPQ2d 1710, 1716 (TTAB 2016) (widespread ornamental use of I ♥ DC was indicative of common understanding of the term for t-shirts and other memorabilia); In re Wal-Mart Stores, Inc., 129 USPQ2d 1148, 1156 (TTAB 2019) (evidence of widespread usage of the phrase INVESTING IN AMERICAN JOBS across various industries, media articles, and blogs, demonstrated a common meaning that applied to the identified services of “promoting public awareness for goods made or assembled by American workers”).

FOLLOW THE LEADER

The TTAB recently reversed an ex parte failure-to-function refusal to register the FOLLOW THE LEADER mark for credit card incentive programs because it does not have a commonly understood meaning applicable to those services. In re Black Card LLC, Serial No. 90641690, 2023 USPQ2d 1376 (TTAB Nov. 21, 2023) (“not every common term or phrase warrants refusal on failure to function grounds”).

“Follow the Leader” is known as a children's game in which the players follow and do what the chosen leader does; but the phrase may convey different meanings depending on the context.

For example, FOLLOW THE LEADER can refer to business decisions made to align with the industry leader, a manager's impact on employees or the business, politicians' or government workers' often negatively portrayed allegiance or compliance with a political figure or political leadership, tour groups being led by a tour guide, or personal decision-making, whether based on following a role model or following the crowd.

            The evidence as a whole does not demonstrate use for services or in contexts from which we may reasonably infer that FOLLOW THE LEADER has a commonly understood meaning applicable to Applicant's services that would render it incapable of being perceived as a source indicator for those services. Nor does the evidence here show that FOLLOW THE LEADER is a phrase used to convey a single, common sentiment or meaning across a variety of goods or services, such that consumers will view the phrase as conveying that same sentiment or meaning regardless of the goods or services in connection with which it is used.

The TTAB further contrasted the evidence here with the record from In re Wal-Mart Stores, 129 USPQ2d at 1153-56, where the common use of the phrase INVESTING IN AMERICAN JOBS across different industries and manufacturing contexts, informed consumer perception of the phrase for the applicant's retail store services and promotional services for goods made or assembled by American workers.

Thomas P. Howard, LLC is experienced in trademarks nationwide including in Colorado.