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You Know What It Is: Taco Tuesday and the Failure-to-Function Doctrine In Trademark Law
In LeBron James' house, Tuesday nights mean one thing: Tacos. In a series of Instagram posts last year, the NBA superstar gleefully announced to his 50-plus million followers that he and his family were enjoying the tradition of eating tacos on Tuesday. It picked up enough attention that James decided to file an intent-to-use trademark application for TACO TUESDAY, including for "advertising and marketing services," "podcasting services," and "online entertainment services" (see, Ser. No. 88579771). But as the New York Times, Los Angeles Times, and numerous other outlets reported, the application was refused by the United States Patent and Trademark Office (USPTO) in a Sept. 11, 2019 office action. One reason given for the refusal was that the applied-for mark did not "function as a trademark." See, http://bit.ly/39JPoO7.
The foundational requirement that a trademark function as a trademark has received little attention in the case law. More recently, however, there has been an apparent uptick in scrutiny of trademark use by the USPTO and Trademark Trial and Appeal Board (TTAB), as well as fresh academic attention paid to the issue.
For a designation to be protectable as a trademark, it must identify and distinguish the source of a good or service (even if that source is unknown). This threshold protectability inquiry is often centered on the question of distinctiveness, that is, whether a designation is sufficiently distinctive in relation to the goods or services at issue for trademark protection to adhere. But distinctiveness alone is not sufficient for a designation to be protectable as a trademark. A designation must also serve to identify the source of a good or service.
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