Ornamentality: When Eye-Catching Isn't Distinctive

Picture this, you've created a unique word, phrase, or design for identifying your business and its products or services. It's eye-catching, memorable, and most of all, yours. You prepare an application to register your mark with the United States Patent and Trademark Office ("USPTO"). Shortly thereafter, you receive a letter. An Examining Attorney reviewed your mark and ... found it to be merely decorative. Your application has been rejected on the basis of ornamentality. This article sets out to help guide an applicant or their agent in ways that may overcome an ornamentality refusal, or prevent such a refusal being raised in the first place.

A trademark is a source-identifying word, phrase, or design intended to link in the minds of consumers a product or service to its source. A trademark must be more than only original or aesthetically pleasing. In other words, a trademark must be more than merely ornamental to be registered.