”Strong” trademarks are so distinctive that it is easy to prevent a third-party from using the mark. It is subsequently less difficult to both register and defend these trademarks. In contrast, “weak” trademarks are often descriptive and/or already used by others to describe their goods or services. As a result, weak trademarks are difficult to legally protect.
Generally, trademarks fall into one of four categories: fanciful or arbitrary, suggestive, descriptive, or generic. The category of the mark largely determines its strength.
- Fanciful and arbitrary marks are the strongest because they are the most distinctive. Fanciful marks are invented words with no dictionary or other known meaning. Meanwhile, arbitrary marks are actual words with a known meaning that have no association/relationship with the goods protected. Examples of fanciful marks are EXXON, KODAK, and XEROX.
- Suggestive marks are also considered strong. They suggest, but do not describe, qualities or a connection to the goods or services. A well-known example is FROOT LOOPs breakfast cereal.
- Descriptive marks are generally considered weak. As the term suggests, these marks use words or designs to describe the goods and/or services. If the USPTO determines that a mark is “merely descriptive,” then it cannot be registered unless it acquires a distinctive secondary meaning through use in commerce for a significant period of time. Descriptive marks are considered “weak” until they have acquired distinctiveness. Examples include CREAMY for yogurt or WORLD’S BEST BREAD.
- Generic terms cannot serve as the basis for a trademark. Because generic words are the common, everyday name for goods and services and everyone has the right to use such terms to refer to their goods and services, they are not protectable. Many are surprised to learn that aspirin, escalator, and elevator were once trademarks before they became generic.
How Can I Help?
As this post highlights, it is imperative to develop a “strong” trademark from the outset. For more information about the potential strength of your trademark, I encourage you to contact me today.