Counsel Dana N. Justus was quoted in the article "Three TTAB Trends Shaping Board This Year," published by Managing IP. She comments on the increase in failure to function refusals issued by the US Trademark Trial and Appeal Board (TTAB). From the article:
"But Dana Justus, counsel at Sterne Kessler in Washington DC, says there’s not enough clarity over what it takes for the TTAB to issue failure to function rejections. The board may issue such rejections if third parties commonly use prospective marks as phrases.
Justus points out, however, that in November 2020, the TTAB reversed a failure to function refusal of ‘Just Another Day in Paradise’ even though there was plenty of evidence that this was a widely used phrase."