Merely Informational Matter Not Registrable at the U.S. Trademark Office

In July 2017, the U.S. (Patent and) Trademark Office (USPTO) published Exam Guide 2-17 (LINK to .doc file) to give guidance on why “merely informational matter” cannot serve as a trademark and thus cannot be federally registered. To function as a mark the matter must serve to indicate the source of the goods/services and to identify and distinguish them from those of others. See 15 U.S.C. § 1052.

The Guide clarifies the policies and procedures for examining certain types of proposed marks. The Guide helps educate as to whether a proposed mark functions as a trademark. The Guide:

  • Creates categories for some types of matter that may be considered merely informational,
  • Identifies relevant case law,
  • Identifies when an examining attorney must refuse registration or require a disclaimer,
  • Discusses an applicant’s response options, and
  • Provides over 20 pages of examples illustrating the related concepts.

This new exam Guide supplements the current policies and procedures set out in the Trademark Manual of Examining Procedure (TMEP) § 1202.04. See the following page to find the Guide.