When A Slogan Isn’t a Trademark: Failure to Function
Entrepreneurs love a punchy phrase. A good slogan can rally customers, look great on a product, and spread quickly online. The trademark system, however, protects words and designs primarily when they do one specific job: tell buyers who is behind the product. When wording is understood mainly as a message—something people say, wear, chant, or post—rather than as a brand, the USPTO can refuse registration on the ground that it “fails to function” as a trademark.
This comes up constantly with short sayings on consumer goods, and it is especially common in categories where buyers expect expressive content, like apparel, mugs, stickers, and jewelry. If you’re trying to register DANCE OR DIE for Class 14 jewelry, you should expect close scrutiny and, in many cases, a high likelihood of a trademark refusal. The reason has less to do with the phrase itself and more to do with how consumers typically perceive slogans on products and how widely the phrase appears in the marketplace
How The USPTO Defines “Failure to Function”
A trademark is not simply a phrase you like or a phrase you intend to “own.” It is a designation that consumers use to identify and distinguish your goods from others. The Trademark Manual of Examining Procedure explains that “widely used messages” include slogans and phrases used by multiple parties to convey ordinary or familiar concepts or sentiments, along with other informational messages that are commonly understood. When the trademark record shows your wording fits that category, the USPTO’s position is that purchasers will read it as the message it conveys—not as a source indicator—and it therefore does not belong on the USPTO’s Principal Register.
Two points surprise business owners. First, a phrase can be refused even if you believe you coined it for your brand. If, by the time you file, the marketplace evidence shows many unrelated sellers using it to communicate the same sentiment, the USPTO can treat it as a “message” rather than a “trademark.” Second, “better specimen placement” can help in many trademark cases, but it does not automatically cure a failure-to-function problem if the phrase itself is already understood as ubiquitous or informational.
How the TTAB Treats Slogans That Sound Like Messages
The TTAB’s slogan cases repeatedly emphasize consumer perception and marketplace context. In re Eagle Crest, the Board held that ONCE A MARINE, ALWAYS A MARINE would be perceived as an informational slogan expressing support or affiliation—not as a trademark for clothing—so it failed to function as a trademark. Similarly, in D.C. One Wholesaler, Inc. v. Chien, the TTAB concluded that I ♥ DC did not function as a trademark for souvenir merchandise because the phrase was informational and ubiquitous; even use on hangtags did not change the outcome. That last point is important: the USPTO does not ask only “where is it placed?” but also “what does it mean to consumers when they see it?”
Why Jewelry is a Repeat Offender: Failure to Function and Ornamentation
On tangible products, “failure to function” often overlaps with the related “ornamental” doctrine. An ornamental refusal is the USPTO saying the matter is being used as decoration, not as a brand. The USPTO’s guidance notes that words, designs, and slogans displayed prominently on goods are frequently perceived ornamentally, and it summarizes factors and TTAB decisions the Office relies on when making that determination.
Jewelry is a frequent battleground because jewelry is often purchased for sentiment: names, dates, affirmations, mottos. A close parallel to a “slogan bracelet” is In re Peace Love World Live, LLC, where the trademark applicant sought to register I LOVE YOU for bracelets. The TTAB affirmed refusal, explaining that consumers would view the phrase on a bracelet as a common expression and ornamental sentiment rather than a source identifier. The takeaway is not that jewelry can’t carry trademarks—it can—but that short, familiar phrases on jewelry are often interpreted as expressive content, not brand names.
Informational refusals also arise when wording describes or comments on the goods rather than identifying source. In re Remington Products, the TTAB held PROUDLY MADE IN USA informational for electric shavers because it conveyed origin and sentiment, not source. Different product, same principle: if consumers read it as a statement, the USPTO is reluctant to treat it as a trademark.
The DANCE OR DIE Example: Why Timing and Marketplace Context Matter
DANCE OR DIE is a classic “message-first” phrase. It reads like a rallying cry, which is exactly what makes it attractive for merchandise—and exactly what makes it vulnerable under TMEP §1202.04(b). Examiners routinely support these refusals with marketplace evidence showing third-party use across multiple sources. When a phrase is already being used broadly as a slogan on merch, the USPTO’s inference is straightforward: purchasers are accustomed to seeing it as a message from many sellers, so they will not assume it identifies one company.
That risk increases when a phrase becomes tied to pop culture or a moment. For example, “dance or die” has been used as a catchphrase in connection with Lady Gaga’s Mayhem-era performances and tour coverage, including reporting and reviews that quote the phrase in describing the show. Unsurprisingly, the phrase also appears in online listings for merch from multiple sellers, which is the kind of evidence an examining attorney may cite when arguing that the wording is widely used and informational. And independent of music-tour merchandising, “Dance or Die” appears in unrelated consumer listings, including at least some jewelry listings.
Put those facts together and the likely USPTO view is: in Class 14, DANCE OR DIE looks like the expressive feature of the jewelry (ornamental) and also like a phrase purchasers encounter from many sources (widely used message). That combination is why these cases are so hard to prosecute successfully when the market is already saturated.
Practical Ways to Reduce Risk and Protect What Matters
The most reliable business strategy is to separate “brand” from “message.” Let the slogan be marketing, and build your protectable trademark rights in a distinctive house mark (your company name or logo) that appears consistently on packaging, product pages, and tags. This is why successful product companies often sell items with popular sayings while still placing a clear brand identifier on the clasp tag, hangtag, box, or card insert.
If you want the slogan itself to be the trademark, your use must teach consumers to treat it as your source identifier. That usually means consistent brand-style placement across channels (not just stamped across the face of the product), “look for” messaging, and evidence that the public associates the phrase with you. But the I ♥ DC decision is a cautionary note: even hangtags and other “typical trademark locations” may not overcome the problem when the phrase is already perceived as ubiquitous and informational.
A third option is to pursue trademark protection for a more distinctive composite trademark—words plus a unique design or logo treatment—where consumers are more likely to recognize the overall presentation as a badge of origin. This can sometimes be more realistic than seeking exclusive rights in the plain wording, particularly when the wording is already popular.
Finally, sometimes the best move is to pivot early. If a quick marketplace review shows heavy third-party use by unrelated sellers, the legal and practical costs of “trying to own” the phrase often outweigh the value of the federal trademark registration. In those situations, it may be more cost-effective to adjust the slogan, build a stronger house trademark, or protect a distinctive logo system—so you can still develop brand equity without fighting uphill against consumer perception.
Conclusion
Failure-to-function and ornamental refusals are not about creativity; they are about consumer perception. Under TMEP §1202.04(b), widely used messages are refused because buyers read them as messages, not as indicators of source. TTAB decisions like ONCE A MARINE, ALWAYS A MARINE and I ♥ DC illustrate that slogans can be refused even when the applicant treats them as “a brand,” and the bracelet case I LOVE YOU shows how quickly jewelry slogans can be perceived as sentiment rather than source.
