Not every word, name, phrase, symbol or design, or combination thereof which appears on a product functions as a trademark.  And, a mere intent that a phrase function as a trademark is not enough in and of itself to make it a trademark.  This is the explanation provided by the U.S. Trademark Trial and Appeal Board (TTAB) in the July 23, 2018 precedential opinion In re Peace Love World Live, LLC (Serial No. 86705287).

The applicant had sought to protect the phrase I LOVE YOU for bracelets in international class 14.  The applicant submitted a photograph of its bracelet as its specimen of use, wherein the bracelet included the letters I-L-O-V-E-Y-O-U connected together.  The examiner finally rejected the application for, among other reasons, failing to function as a trademark because it is merely a decorative feature of the applicant’s bracelets.  Sections 1, 2, and 45 of the Trademark Act state that if evidence establishes that an applied-for matter would be perceived merely as an informational or common message, then it is not operating as a trademark because it is mere ornamentation.  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 trademark.  In this instance, the examiner offered several examples of the phrase “I love you” used with jewelry.

Some of the factors considered when evaluating a mark that appears to be ornamental, rather than a source indicator, include the size, location, dominance and significance of the alleged mark as applied to the goods.  In this application, the phrase “I Love You” was essentially the bracelet itself, as each of the eight letters were one of the bracelet’s segments.  As a result, the words were merely an aesthetic feature of the goods, and thus an important component of the product itself, rather than a trademark.  And, since consumers are accustomed to seeing similar, ornamental displays of “I Love You” on bracelets and other jewelry from different sources, this made it less likely to indicate source, and thus less likely to function as a trademark.  Accordingly, the TTAB denied the applicant’s appeal and affirmed the examiner’s rejection of this application.

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