Having trademarks for your company is crucial for building brand awareness, goodwill, and customer loyalty. A trademark, to briefly describe, is a word, phrase, symbol, logo, or other device that identifies the source of a product or service. On your way to and from work, you probably drive past dozens of trademarks (McDonald’s Golden Arches, Starbucks’ two-tailed Norse Siren, and plenty of others).
Not every trademark is the same, however. There are strong ones and there are marks that are simply common words and phrases and not actually a trademark at all. The stronger your trademark, the better chance you have of receiving federal protection through the USPTO when you apply. It’s also easier to protect a stronger trademark.
The Spectrum of Distinctiveness
Trademarks gain some amount of protection through their continuous use in the marketplace. You do not have to register your trademark to get certain protections, but it is almost always a good idea to send an application to the USPTO. To help determine the level of protection your trademark deserves, it is important to determine which point on the “spectrum of distinctiveness” it belongs to:
- Fanciful/Coined — These are the strongest trademarks. Fanciful marks are words that people do not use in any context other than speaking about your products or services. EXXON/MOBIL is a good example of a fanciful trademark; that phrase did not exist anywhere before it was “coined” by the company.
- Arbitrary — Words or phrases that are arbitrary marks can be found in the dictionary but have no obvious connection to your products or services. A classic example of an arbitrary mark is “Apple.” Apple is one of the world’s most recognized brands, but every consumer knows the corporation does not sell fresh fruit.
- Suggestive — This type of mark makes implications about your product or service without describing it. Froot Loops is an example of a suggestive mark.
- Descriptive — It is quite difficult to get descriptive trademark protection from the USPTO. These words or phrases merely describe the product or service in question. “Matthews Pizza”, describing a pizzeria owned by the Matthews family, is descriptive and not a great candidate for a strong trademark. Some descriptive marks may become distinctive enough in consumers’ minds to gain trademark protection, think “American Airlines.”
- Generic — There is actually no such thing as a generic trademark, as generic words and phrases are not trademarks at all. You wouldn’t be able to trademark “hot pizza” or “Pens and Pencils, Inc.”
By nature, it can be extremely difficult to have a fanciful or arbitrary mark for your startup. Without a lot of brand awareness, most consumers won’t be able to connect your mark with your company’s products or services. As a result, many founders wrestle with choosing a suggestive mark versus choosing something more arbitrary.
Figuring out what’s best for your business means consulting with an experienced attorney who has helped other entrepreneurs implement a strong strategy for their intellectual property. Trembly Law Firm assists clients with a wide range of legal services having to do with trademarks, and we’d love to speak with you soon about yours. Schedule a consultation with our team here.
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