“Trademark” is broadly defined in Section 45 of the Lanham Act, 15 U.S.C. §1127, as “any word, name, symbol, or device, or any combination thereof” that identifies and distinguishes goods and indicates source. The same definitional breadth applies to service marks, certification marks and collective membership marks. The Supreme Court has supported such breadth where it stated in Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 162 (1995) “ … since human beings might use as a ‘symbol’ or ‘device’ almost anything at all that is capable of carrying meaning, this language, read literally, is not restrictive.” [Emphasis added].

Is this a case of “anything goes” in the U.S. Patent and Trademark Office (USPTO) for registration of nontraditional marks? The answer appears to be in two parts: “almost,” given the broad range of nontraditional marks the USPTO has registered, and “not quite,” as the spectrum of distinctiveness applies and marks must not be functional.