Jeremy Beutler’s article “Failure to Function: The Color of Unicorn Tears” was recently published in the November 2021 issue of Valley Lawyer Magazine, the official publication of the San Fernando Valley Bar Association. The article discusses the increase of failure-to-function refusals that have been issued by trademark examiners and the U.S. Trademark Trial and Appeal Board. In the piece, Jeremy references the case of Glow Concept Inc. v. Too Faced Cosmetics as an example of how the failure-to-function doctrine has made it more difficult for applicants to protect their trademarks through registration.
“The case is notable because it contrasts with the Second Circuit’s approach when confronted with an analogous issue in trademark infringement actions,” writes Jeremy. “Also, it exemplifies the higher standard trademark applicants and petitioners face when they choose to bring claims before the TTAB rather than before (at least some) federal courts.”