Tips for Choosing a Good Trademark

Austin Palombizio Trademark

When choosing a trademark for your business, it is vital to choose a strong mark. Strong trademarks have a high potential to stand out from the crowd – a quality known in trademark terms as “distinctiveness.” Distinctive marks stick in the minds of customers, building brand awareness. And, from a legal prospective, protection is often easier and less expensive.

At the top of the hierarchy are (1) fanciful and (2) arbitrary marks, both of which are automatically considered distinct. Fanciful marks are made-up terms, by their nature unique, distinctive, and not found anywhere else. Examples of fanciful trademarks include “Kodak” and “Exxon,” which only exist in reference to the companies that use them. Arbitrary marks, such as “Apple” for use with computers, existed as words before they became trademarks, but are entirely unrelated to the goods or services with which they are used.

Suggestive marks follow as the next category of trademarks. They bear a relationship to the product or service they represent, but it takes thought or imagination to make the connection. For example, “Coppertone” is a suggestive mark because it, implies qualities of the product (users will get a copper skin tone), but does not plainly describe their product. Though inherently distinct, the link between the mark and the product or service slightly weakens the available protection.

The lowest tier of registrable marks are descriptive marks. A descriptive mark merely describes an aspect of a product or service, such as an ingredient, quality, characteristic, function, feature, purpose, or use. For example, “BED & BREAKFAST REGISTRY” is descriptive of lodging reservation services. Protection of descriptive marks is possible, but it is more difficult than with fanciful, arbitrary or suggestive marks because it requires showing “secondary meaning.” Secondary meaning requires that consumers associate the mark with your particular source of goods or services, and not just as a descriptive term—which is difficult because there are usually many businesses using similar descriptive terms.

Last on the list are generic marks. Generic marks are merely the name of the product or service. These types of marks are not considered trademarks at all. “Desk” for selling desks would be a generic mark, and ineligible for any trademark protection.

If you aim to create a mark to represent your business to set yourself apart from the competition, it is best to start with a strong mark. Consider choosing a mark that is fanciful or arbitrary.