The Original Sin of Trademark Law: Failure to Function

Last week, Foley Hoag Partner Josh Jarvis joined John Welch, Author, TTABlogger and Counsel at Wolf Greenfield & Sacks; Alexandra Roberts, Associate Professor at the University of New Hampshire Franklin Pierce School of Law; and Daniel McKinnon, Head of Global Brand Protection and Senior Counsel at New Balance, for a spirited discussion regarding “failure to function” – the threshold question of whether a purported trademark actually serves, or is capable of serving, as a source indicator.

The panel was sponsored by the Northeastern University School of Law Center for Law, Innovation and Creativity (CLIC) and the Boston Patent Law Association (BPLA), and was moderated by Professor Susan Montgomery at Northeastern University School of Law.  The panelists explored the various ways in which words and designs can be considered as failing to function as trademarks, recent USPTO trends regarding failure to function refusals, and practical takeaways and best practices for brand owners and trademark applicants.

Check out the full video embedded below or on the Northeastern University School of Law website.

Thanks to Michael Bergman, President-Elect at the BPLA, for taking the group photo above!

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