Companies often apply to register their trademark for use in connection with goods that are not actually related to their business. For example, tech companies (and, to be fair, many non-clothing companies) register their trademarks in connection with promotional items such as t-shirts, sweatshirts, hats, and other products that they don't actually offer as a part of their business.  

Trademarks are protected as source identifiers so that consumers can understand the nature and quality of the product based on the trademark. But is the tech company the source of that t-shirt? Surely not. The use of the trademark on the shirt tells the consumer nothing about the nature and quality of the shirt because that's not the tech company's business. Compare this to the use of the Nike logo on a product. Yes, it has some marketing value, but it importantly tells the consumer that Nike is the source of that product. The tech company's clothing bears an ornamental use of its trademark. Nike's use on clothing is source-identifying trademark use.

Ornamental use is not sufficient to support a trademark registration under the law. Nonetheless, the United States Patent and Trademark Office regularly approves registrations for marks used in this ornamental sense. Until it treats these items differently and refuses such applications for registrations, companies are well advised to continue to pursue such registrations.

And perhaps the PTO should continue accepting these somewhat ornamental uses. After all, while a consumer may not think the shirt is the product of the tech company, they could nonetheless reasonably believe that the tech company is controlling the use of its mark on those shirts, and thereby believe the company is controlling their quality. In fact, it probably is, at least to some degree. In that case, though, is there any meaning to the statutory prohibition of registration based on ornamental use?

Let's hope this court's analysis sheds some light.