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What you need to know about trademark distinctiveness

On Behalf of | Oct 26, 2022 | Business Law & Litigation

Your business’ brand can carry more value than you realize. It can signal to consumers the quality of your products and services, and it can make you stand out above the competition.

Even though you’ve worked hard to build your brand and your business’s reputation, it may be under threat without you realizing it. One way is through trademark infringement, where others use your marks and slogans as a way to cause consumer confusion and profit off of what you’ve built.

How trademark distinctiveness comes into play

To best protect your business, you need to ensure that you have an understanding of trademark law and how it applies to your set of circumstances. One key aspect that may be important to your situation in trademark distinctiveness.

Essentially, a mark’s distinctiveness is how unique it is and how strong it serves as a source identifier. A mark’s distinctiveness is important because it can dictate whether your mark is registerable as a trademark and how easy it is to prove that your mark has been infringed upon.

The varying levels of trademark distinctiveness

There’s a spectrum of distinctiveness that your mark will fall on. Let’s look at some of the common classifications here:

  • Generic: Generic marks are typically common words that are used to describe a good or service. For example, the name “butter” won’t be protectable for a butter product, just as trademark protection for “valet” won’t be available for a business that parks cars.
  • Descriptive: These marks tend to describe an ingredient, part, or function of the goods or services in question. These marks may or may not receive trademark protection, but it really depends on the association that the consuming public has drawn between the descriptive mark and the goods or services. For example, Coca-Cola is technically a descriptive mark since it was initially a cola with ingredients derived from the coca plant, but it has since developed association with a particular brand.
  • Suggestive marks: Suggestive marks require the use of your imagination to draw a link between the name and the goods or services in question. These marks aren’t considered arbitrary, as they can describe an aspect of the product in question, but they’re suggestive nature makes them registerable for trademark protection. Convenience store chain 7-Eleven is an example of a business that has a suggestive mark because its stores are open late.
  • Arbitrary: These marks use existing words that have no relation to the product itself. Therefore, they are easily protectable if they serve a source-identifying function. “Dove” for soap and other hygiene products is a good example of an arbitrary mark.
  • Fanciful: Fanciful marks are those that are completed made up. These marks tend to have the strongest protection since the words and phrases can’t be used in any way other than to refer to the business that uses it. “Google” is a fanciful mark.

If your mark falls on the spectrum in a category that receives protection, then you need to make sure that you’re registering your mark and policing it so that you can protect your business interests as fully as possible.

Do you need a legal ally on your side?

We know that it can be frustrating to try to understand the legal intricacies involved in running and maintaining your business, including dealing with intellectual property issues. But if you want to protect your business and your profits, then you need to know how to competently navigate these matters. Fortunately, you don’t have to do that on your own. Instead, you can work closely with an experienced legal advocate who can guide you through the process and create legal strategies that put you on the road to success.