Original photo by trekandphoto/ Adobe Stock
When you see the Nike Swoosh on a sneaker, spot one of Tiffany’s blue boxes, or recognize the unique contour of a Coca-Cola bottle, you’re not just noticing design flourishes. Those are trademarks, the symbols that signal a company’s identity.
A trademark can be a name, logo, slogan, color, sound, shape, or, in rare cases, even a scent — anything that tells consumers, quickly and clearly, who stands behind a product or service.
Because trademarks are meant to prevent consumer confusion, not to eliminate competition, trademark law has firm restrictions. Federal protection applies only to marks that truly function as source identifiers.
Over the years, applicants have tried to claim exclusive rights to everything from everyday phrases to pieces of shared culture, only to discover that the system carefully defines what can and cannot be monopolized. Here are five examples of what cannot be protected as a trademark.
Cultural Symbols and Historic Phrases
Some symbols and phrases are too culturally significant to be privately owned. After the September 11 attacks, for example, multiple applications sought to trademark “9/11” and related phrases for merchandise. Those attempts were quickly rejected, as the U.S. Patent and Trademark Office has concluded such terms refer to a historic event, not a commercial source. Similar efforts involving national symbols, patriotic slogans, and civil rights references have consistently failed.
In limited cases, a historic symbol or phrase can receive trademark protection when it becomes closely associated with a specific organization. The National September 11 Memorial, for example, has trademarked a stylized “9/11 Memorial” logo — with “11” represented by two parallel vertical bars evoking the form of the World Trade Center’s twin towers — to protect its official identity.
Another example is Smokey Bear, the wildfire prevention mascot who began as a public service character for the U.S. Forest Service in 1944. Congress later granted the federal government exclusive rights to his name, image, and famous slogan — “Only You Can Prevent Forest Fires” — to prevent misuse and commercial exploitation, while leaving the public free to reference the character.
Famous Names That Aren’t Yours
A personal name can function as a trademark — but only under the right circumstances, and usually only with the consent of the person whose name it is. Elvis Presley’s name, for instance, became a valuable commercial asset after his death in 1977. His estate consolidated control of licensing in the 1980s through Elvis Presley Enterprises, which registered trademarks covering his name, signature, and likeness for everything from recordings to memorabilia.
Over the years, outsiders have tried to register “Elvis” for unrelated merchandise, only to be rejected or challenged. Courts have consistently held that a famous name can’t simply be claimed by someone with no connection to it.
Under U.S. trademark law, living individuals must give written consent before their name can be federally registered as a trademark. After death, the commercial value of a name is typically controlled by the person’s estate or designated heirs, often through a combination of trademark rights and what’s known as the right of publicity, which governs the commercial use of someone’s identity.
Names of Geographic Places
Trademark law generally bars companies from claiming exclusive rights to real-life place names because those words describe geographic origin, not brand identity. Under the Lanham Act, trademark claims that are primarily geographically descriptive are typically refused.
A business can’t simply trademark “Brooklyn” for clothing made in Brooklyn or “Napa” for wine from Napa Valley, since competitors in those areas have a legitimate need to describe where their products come from. Courts have repeatedly reinforced this principle, particularly in disputes involving wine, beer, and regional food products.
However, a geographic term can be registered if it develops secondary meaning, meaning consumers associate it primarily with a specific company rather than a place. That’s why brands including American Airlines, Kentucky Fried Chicken, and Amazon can function as trademarks. In those cases, the geographic reference is either indirect or outweighed by strong brand recognition.
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Functional Features
Trademark law cannot protect product features that serve a practical purpose. Known as the functionality doctrine, this rule prevents companies from monopolizing useful designs.
In the 2001 Supreme Court case TrafFix Devices v. Marketing Displays (2001), the court rejected an attempt to trademark a dual-spring mechanism used to stabilize road signs, ruling that features improving performance must remain available to competitors. Similar efforts to trademark tread patterns, ergonomic shapes, and mechanical components have failed for the same reason.
The logic here is that trademarks identify brand origin, not product utility. Useful innovations belong under patent law, which grants temporary protection before releasing designs into the public domain. Once patents expire, competitors can copy those features, encouraging competition and lowering prices. Only purely ornamental elements — such as the distinctive curves of the Coca-Cola bottle — can qualify for trademark protection.
Generic Terms
In 2008, technology company Dell applied to trademark the term “cloud computing,” just as the phrase was becoming the go-to shorthand for online data storage and remote software services.The move sparked protests within the tech industry at a time when the internet was dramatically expanding; competitors argued the term described an entire category of technology, not a single company’s product. The U.S. Patent and Trademark Office ultimately agreed, rejecting the application on the grounds that “cloud computing” was a common descriptor already in widespread use.
Trademark law is especially strict about generic terms because granting exclusive rights to them could stifle competition almost overnight. For example, imagine if only one company controlled the word “email” or “smartphone.”
Instead, businesses can protect distinctive brand names, such as “iPhone,” but not the name of the product category itself. Once a term becomes the accepted label for a type of product or service, it no longer points to a single source. It belongs to the marketplace — and to the language — not to the company that got to the trademark office first.
Kristina is a coffee-fueled writer living happily ever after with her family in the suburbs of Richmond, Virginia.
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