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  • Writer's pictureTodd

Fanciful to Generic: Untangling the Mystery of the Trademark Distinctiveness Spectrum

A trademark’s purpose is to identify the source of goods or services. For a trademark to serve its purpose, the consumer must be able to distinguish goods or services associated with a particular trademark. The Distinctiveness Spectrum, serves to provide general guidance regarding the strength of the mark, and whether a trademark can be registered at all.

The Distinctiveness Spectrum ranges from fanciful, which can probably obtain a trademark registration, to generic, which cannot obtain a trademark registration.

A fanciful trademark involves made-up words and is considered distinctive and more likely to obtain a trademark registration. Examples of fanciful trademarks are Kodak® for photographs, Clorox® for bleach, and Adidas® for sporting equipment.

If a trademark is arbitrary, it also has a high level of distinctiveness and is likely going to be able to obtain a trademark registration. An arbitrary trademark applies to the goods or services in an unfamiliar way. One famous example of an arbitrary trademark is Apple®. This company has nothing to do with the delicious fruit that grows on trees; rather it sells computers, tablets, phones, and watches.

In the middle of the spectrum are suggestive trademarks. These are words that require enough use of imagination that they are not outright descriptive. For example, Coppertone® is a suntan lotion with the goal to make your skin a copper tone. Kleenex® for facial tissue also suggests that its use is to clean.

A descriptive name cannot be registered as a trademark without inherent distinctiveness or secondary meaning. For example, if you own a water company, you cannot register a trademark for Water. Water is descriptive of your product. Because Water describes water, it would not be a good use of trademark law to prevent every other water company that does business in the United States from using the word water to describe their product.

And finally, we have generic marks. A generic mark is specifically excluded from protection under the Lanham Act. There are some very famous products that no longer have trademark protection because the name now refers to the generic product. For example, Aspirin was a trademark Bayer owned for acetylsalicylic acid. Yo-Yo, Escalator, and Zipper also used to be registered trademarks.

Please note that the information contained in this article is intended for general informational purposes only and not as specific legal advice. The facts of your situation may differ from this general information. It is not intended to and does not in any way establish an attorney-client relationship.

If you wish to schedule a consultation, let’s work together on your trademark needs


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