A trademark may be meaningful. It may be unique, or at least unique to you. It may have a backstory. It may be readily recognizable to your customers. However, if you haven’t registered it yet, you may not know whether it’s distinctive enough to be registered. There are ways to tell whether your trademark is truly unique, or if it needs some work.
What makes a trademark distinctive?
The strength of a mark is “the distinctiveness of the mark, or more precisely, its tendency to identify the goods sold under the mark as emanating from a particular, although possibly anonymous source…”
To gauge the inherent distinctiveness of a mark, look at these four (4) categories, ranging from least to most protection under the Lanham Act:
- Generic – a common description of goods and never protected
- Descriptive – describes the products features, qualities or ingredients in ordinary language protected only with secondary meaning
- Suggestive – uses terms which do not describe, but merely suggest the features of the product. It requires the purchaser to use imagination, thought, and perception to reach a conclusion as to the nature of goods. It signifies to the public the generic name other than the source of a particular brand of that article and is protected without proof of secondary meaning
- Arbitrary or fanciful – always protected without proof of secondary or dictionary meaning and with ease of establishing infringement
In short, a trademark is distinctive when the average person can associate it only with your product or service AND not confuse it with another product or service. For example, Nike’s swoosh is a simple shape, but the shape by itself makes the viewer think of the athletic clothing manufacturer. It’s simple, but it’s distinctive because it sets Nike apart from other brands.
Like the Nike logo, a distinctive trademark isn’t a literal representation of the product or service, in word or design. Consider the golden arches that form the “M” that represents the world’s largest fast-food restaurant chain.
Does it have to be absolutely unique from all other trademarks in existence?
It doesn’t have to be 100% different from all other trademarks ever in existence. It really has to be distinctive from other products and services in your market, or if applicable, in your geographic area. Basically, a reasonable person shouldn’t confuse your trademark with another product or service.
Why does the trademark have to be distinctive?
The trademark has to set a company, product, or service apart from others. It’s very difficult to register and to protect a trademark that’s ordinary or literal, but it needn’t be over the top.
What are some ways I can make my trademark more distinctive?
One way you can try to make your trademark more distinctive is to do some research. Does the definition of your chosen literal mark describe or define your goods or services? Are your competitors using the same mark or word or a similar term?
Getting the opinion of a third party is helpful, too. A marketing or branding professional can create a distinctive trademark for you. But realize that marketers love using descriptive terms that lack distinctiveness, as it tells the consumer exactly what your goods, services, or a feature of them. If you don’t want to make a complete change, they can help you tweak your existing trademark to make it more remarkable. Your trademark lawyer can also help you conduct a search of what’s already out there to ensure that you are steering clear of violating someone else’s rights.
I’m ready to register my trademark. What should I do?
Once you’re sure that your trademark is distinctive, you can register it with the United States Trademark and Patent Office. However, if you’re worried that your trademark isn’t distinctive enough, it’s best to find an intellectual property attorney to help you register your trademark. An intellectual property attorney can give you advice and help better determine whether your trademark will be contested and help you in the event that it is contested.
If you need assistance getting started, we invite you to contact the Law Office of Jason H. Rosenblum, PLLC at (888) 666-0062 to schedule a consultation.
DISCLAIMER: The information contained in this article is for informational purposes only and is not legal advice or a substitute for obtaining legal advice from an attorney.
Law Office of Jason H. Rosenblum, PLLC ©2017 All rights reserved