A single title of a work should now be registrable on the Supplemental Register provided the title is in use in commerce. In a recent Trademark Trial and Appeal Board (TTAB) case, the refusal based on the failure to function as a mark was questioned and hopefully laid to rest.
Although not identified as a precedent, In re King Productions, Inc., (TTAB Nov. 19, 2014), indicates that future refusals to register titles of single works will be refused registration under Section 2(e)(1) rather than Sections 1, 2 and 45. This means that applicants now have a new option to amend applications to the Supplemental Register rather than wait until the title is used for a second work.
Previously, attempts to register a title to a single work were refused based on the explanation that the title describes the work. However, despite the descriptiveness explanation, registration was refused by the USPTO for failure to function as a mark under Sections 1, 2 and 45, rather than refuse registration based on Section 2(e)(1) based on descriptiveness. TMEP §1202.08 still indicates that “The title of a single creative work is not registrable on either the Principal or Supplemental Register”. However, as a result of this case, which refers to “a thorough review of the case law and the underlying principles for refusing registration of titles”, such refusals should be a thing of the past.