When starting a business, you need a way to distinguish your goods or services from that of your competitors. That’s where trademarks come in. A trademark is a word, name, symbol, or any combination of those used to identify the source of a good or service. Think: the Apple logo or the Nike Swoosh. There is an entire body of law dedicated to the enforceability of trademarks. Before spending money on unprotectable intellectual property, read this article to help you choose a strong mark for your business.
Avoid Names That Are Generic or Descriptive
The purpose of a trademark is to ensure consumers know the source of a good or service. Customers expect a certain level of quality when they purchase a pair of shoes from Nike, and the Swoosh is a way for buyers to identify the manufacturer of those shoes. The enforceability of trademarks hinges on distinctiveness: is there any way that a consumer could be confused about the source of a good or service? Distinctiveness exists on a spectrum. On the “unenforceable” end, we have terms that are simply “generic.” For example, a company that sold kitchen utensils would have a hard time trademarking the name “forks and knives.” Similarly, trademarks that are merely “descriptive” are also unenforceable. Take, for example, a company that sells hand soap. In all likelihood, the company would be unable to trademark the name “lemon-scented hand soap.”
What are strong trademarks?
On the other end of the “distinctiveness” spectrum are trademarks that are “suggestive,” “arbitrary,” or “fanciful.” Generally speaking, trademarks that fall into one of these categories are afforded at least some level of intellectual property protection.
1. Suggestive
“Suggestive” trademarks do just that: they suggest a quality or characteristic of a product or service. Importantly, marks of this variety require some level of imagination on the part of the consumer to connect the trademark to the product or service, so they are afforded more protection than descriptive marks. A popular example of a suggestive trademark is “Netflix.” If we divide the mark into two parts, we get “net” (indicating an internet service) and “flix” (a play on “flicks,” suggesting a service related to movies). Taken together, the name “Netflix” suggests an internet-based streaming service.
2. Arbitrary
An arbitrary trademark is a word or image that already exists, but has nothing to do with the business that uses it. Examples of “arbitrary” mark are “Apple” as applied to personal computers and “Domino” as applied to pizza.
3. Fanciful
Finally, the most distinctive trademarks are those that are “fanciful.” Marks that fall into this category are inherently distinctive because they are completely made-up. Popular examples include “Exxon” and “Google.” These types of trademarks are afforded the broadest scope of intellectual property protection.
Starting a business? Need help choosing/registering a trademark? Let us put you in touch with an intellectual property attorney well-versed in counseling clients on trademark-related issues: https://www.sleegal.com *The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.
