Distinctiveness is the name of the game! If your trademark merely blends into the clutter and noise of the marketplace, plan to make substantial investments to gain and maintain traction. Instead, stand up and stand out! Develop and adopt trademarks that carry the message that the products or services you are presenting are yours, backed by your promise of quality and value.
Courts have applied a spectrum of distinctiveness to measure the innate strength of trademarks – from designations that can never be trademarks to potent ones that can only be trademarks:
- Generic designations are words or designs that immediately convey what the products or services are. Generic designations can never be trademarks. “CAR” applied to automobiles.
- Descriptive designations describe the nature, quality, or characteristics of the products or services. If that is all these designations do, they are not trademarks. However, if, through use, they no longer merely describe, but become recognized as flags that identify the source of products or services, they can become trademarks. “FAST” applied to automobiles.
- Suggestive designations are those that suggest a quality or characteristic of the product or service or the product or service itself, but require some thought and imagination to make the connection. These designations are inherently distinctive trademarks. “GENTLE” applied to automobiles.
- Fanciful and arbitrary designations are inherently strong, because their sole function is to be source identifiers, flags, trademarks. Fanciful designations are inventions – made up words; while arbitrary designations are standard words or designs used in other than their ordinary sense. Fanciful and arbitrary designations are inherently distinctive trademarks. “ZICK” applied to automobiles is fanciful, while “CARS” applied to entertainment services is arbitrary.
The farther from generic, the more distinctive and strong your trademarks are, the fewer the resources they require to maintain and protect them.
Therefore, stand up and stand out! Be distinctive!
This blog-post is for general informational purposes only and is not intended as legal advice. Please consult your attorney about your particular situation.
The views expressed in this blog-post are the personal views of David Gryce and do not represent the views of Arent Fox LLP, its partners, employees, or clients.