A Universal Symbol is a graphic design or illustration that is well-known in the public domain and through its ubiquity, is able to effectively deliver a particular message. Consider for the moment the “Exit Sign”, written in red letters with an arrow next to the letter “T”. This particular message is quite clear – follow the arrow and you will arrive at an exit point in a given hallway or stairwell.
From a trademark perspective, Universal symbols are frankly challenging to protect because they often do not serve as commercial source identifiers – instead, they are functional in nature and do the heavy lifting required in trademark law of branding a particular product or service with a device that communicates the owner of the product or service upon which the symbol is affixed.
EXAMPLES OF UNIVERSAL SYMBOLS WHICH CANNOT BE TRADEMARKED
The Trademark Manual of Examining Procedures (TMEP) explicitly defines Unviersal Symbols as “a design, icon, or image that is commonly used in an informational manner and conveys a widely recognized or readily understood meaning when displayed in its relevant context. See Webster’s New World College Dictionary 1356 (3rd ed. 1997) (defining “symbol” as “something that stands for, represents, or suggests another thing; esp., an object used to represent something abstract); id. at 1460 (defining “universal” as “used, intended to be used, or understood by all”). Universal symbols are typically available for use by anyone to quickly provide notice of a particular condition or to indicate a characteristic of an object or area. Thus, they appear in a variety of places, such as on road signs, near dangerous machinery, on medical apparatus, in hazardous locations, on product warning labels, or on materials connected with recycling activities. Usually, the context in which a universal symbol appears is crucial in determining the symbol’s significance.” TMEP 1202.17.
TMEP 1202 specifically invokes the following examples of Universal Symbols to communicate the sorts of designs that would qualify as excessively meaning-saturated.
The recycling symbol typically designates materials that are recyclable or recycled, but may also indicate that goods or services involve recycling or are otherwise environmentally friendly. See, e.g., About.com, Recycling Symbols Made Easy, http://greenliving.about.com/od/recyclingwaste/tp/recycling_symbols.htm
The international radiation symbol indicates proximity to a source of radiation or radioactive materials. See, e.g., U.S. Dept. of Health & Human Servs., Examples of Radiation Signs and Symbols for Work Areas, Buildings, Transportation of Cargo, http://www.remm.nlm.gov/radsign.htm
The biohazard symbol indicates the presence of pathogens or other matter that is potentially harmful or poses a health risk. See, e.g., U.S. Department of Energy, Berkeley Lab, Biohazardous Waste Labels, http://www2.lbl.gov/ehs/waste/pub-3095/wm_pub_3095_ch2.shtml
The universal prohibition symbol, which usually appears superimposed over another image or wording, is a visual representation of “no,” “not,” or “prohibited.” See, e.g., Free Signage.com, Prohibition Signs, http://www.freesignage.com/prohibited_signs.php
UNIVERSAL SYMBOLS DON’T ACT AS TRADEMARKS
Remember, trademarks serve the essential purpose of indicating to a consumer the source-company which is behind the product to which the trademark is affixed. The reason why Universal Symbols are generally ineligible for trademark protection is that by virtue of their generic meaning, they cannot possibly indicate a specific source-company. Thus, the context within which the trademark is used plays a crucial role in the analysis of whether or not the desired trademark actually serves as “source-identifier”. If a consumer were, for example, to see the nuclear symbol affixed to a jug, the consumer would very likely understand the “trademark” to merely represent the presence of nuclear-material, rather than consider the nuclear symbol as a “logo” of a specific jug company. If the symbol has descriptive significance as it is applied to the product, the symbol cannot be considered a “trademark”.
STEPS TO CONVERT A UNIVERSAL SYMBOL INTO A TRADEMARKABLE ASSET
Given our understanding that Universal Symbols are typically ineligible for trademark protection, the question stands to be asked; When Are Universal Symbols trademarkable? Well, to answer this question, we need simply consider the functional/descriptive problems hindering Universal Symbols and transform those very same symbols into something that is sufficiently distinct. Interested in using a radioactive symbol? Get Creative! Make it unique! The key here is that consumers must understand that the particular iteration of the symbol is something proprietary to your brand specifically. Furthermore, the actual good/service that you are providing under your new symbol of course cannot relate to the product typically associated with the more common version of your symbol.
HOW DOES THE TRADEMARK SOUND?
Clever applicants are sometimes struck with the intuition that if they only change the lettering of a given trademark, such that it is dissimilar from an existing mark, the Likelihood of Confusion will be reduced. This is not unfortunately the case. Examining attorneys will consider the phonetics of both the senior trademark and the junior mark and if the pronunciation of one is too similar to the other, there will be a 2(d) Likelihood of Confusion. Returning to our NIKE example, if this craft startup were to call itself NIKAY, they again would trigger a Likelihood of Confusion rejection. Why? Because the the sound of NIKAY is sufficiently similar to NIKE to cause a Likelihood of Confusion with potential consumers.
THE MEANING OF THE TRADEMARK
The given meaning of the senior trademark vs the junior mark is often a hotly debated point between the owners of the two marks. If the junior applicant’s mark were to be rejected based on a 2(d) objection, the burden of proof will be on him to demonstrate that his mark carries a substantially different meaning than the Senior Mark. This may be done by citing a dictionairy definition of the marks, demonstrating that perhaps there are multiple meanings which may be freely interpreted by a theoretical consumer. Alternatively, the applicant may highlight the signifigant and meaningful differences between the goods themselves, thus showing that it would be impossibly unlikely to that consumers would suffer from any confusion.
TRADEMARKS AND COMMERCIAL IMPRESSION
The “Commercial Impression” factor to a large extent speaks to the totality of the aforementioned factors: It is another factor that helps the Office compare similarities between the two trademarks and asks the big picture question, how do the marks “seem” to the consumer? What does the trademark represent vis-à-vis the products sold. This birds-eye view impression encompasses a trademark’s appearance, sound, pronunciation, and general perception of the mark’s meaning. “Commercial impression” is the archtype idea of the brand and product line
SPEAK WITH A TRADEMARK LAWYER AND REGISTER A TRADEMARK FOR YOUR LOGO
Determining whether or not a prospective trademark would trigger a Likelihood of Confusion rejection is part art and science. Certain marks are obviously impermissible because of infringement issues (a new shoe company could never obtain the trademark, “NIKEY” while others are far more ambiguous. Before you file a trademark, make sure you do your due diligence. Speak with one of our trademark attorneys to learn more about the trademark process.