How to Get Trademark Distinctiveness Right
The spectrum from generic to fanciful that determines how strongly a name or logo can be protected as a trademark.
Priya Raghunathan
Where most projects go wrong
The usual mistakes:
- Names that simply describe the product
- Generic words as brand names
- Relying on descriptive names without a plan
- Assuming domain availability means protectability
What good looks like instead
- Favor fanciful, arbitrary or suggestive names
- Test names against descriptive refusals
- Pair descriptive names with distinctive logos
- Document brand use for acquired distinctiveness
- Avoid generic terms in core names
Why it matters
Descriptive names are hard to protect, while distinctive names are easier to register and defend.
The specs that matter
| Measure | Figure |
|---|---|
| Fanciful | invented words are the strongest marks |
| Arbitrary | real words unrelated to the product are strong |
| Suggestive | hint at qualities without describing them |
| Descriptive and generic | descriptive marks need acquired distinctiveness and generic terms cannot be protected |
Knowing when to hand it over
Tip: Bring in help when evaluating shortlisted brand names.
Where this comes from
- United States Patent and Trademark Office — Trademark basics
- World Intellectual Property Organization — Trademarks
The figures and practices above come from the sources listed.
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