Is My Trademark Distinctive Enough?

When the U.S. Patent and Trademark office considers an application, the distinctiveness of the applicant’s mark is an important factor in their evaluation. Trademark protection offers you exclusive rights to a certain name or phrase, so the patent office needs to know: Is that name or phrase distinctive enough to identify your product and your product alone?

How Does the U.S. Patent Office Determine Distinctiveness?

There are five levels on the trademark “spectrum of distinctiveness.” Each level offers different degrees of protection from the patent office, all of which could make a crucial difference in your trademark infringement case. Officially, trademarks can be classified as:

Generic marks – Marks using the common names for goods and services (i.e. salt to describe sodium chloride) are not eligible for trademark protection.

Descriptive marks – A mark with a dictionary meaning used in connection with your product or service (i.e. Vision Center for an optometrist). These marks cannot be registered unless the applicant has already clearly distinguished their product in the marketplace.

Suggestive marks – Marks that indicate the nature, qualities or characteristics of your product without saying them outright (i.e. Greyhound Buses).

Arbitrary marks – Usually a common word used in a meaningless context. These marks are eligible to be registered, but they are most successful when the common word is unrelated to the company’s product (i.e. Apple Computers).

Fanciful marks – An entirely invented or “fanciful” mark that is inherently distinctive and exclusive to your brand (i.e. Kodak, Starbucks). These marks are the best option for registration, and safest from infringement.

Even big corporations must abide by these rules when registering their trademarks. On June 30, Delta Airlines learned that they could not trademark the phrase “The World’s Most Trusted Airline”.

The patent office rejected the airline’s application on the grounds that the phrase “most trusted” is merely laudatory and descriptive, rather than distinctive. Delta is currently awaiting trademark approval for another phrase, “Official Airline of Champions”.

In any trademark infringement lawsuit, you need a lawyer on your side who knows the nuances of trademark law. Klein Trial Lawyers has decades of experience protecting small businesses from malicious or reckless infringement. Protect the bond of trust between you and your customers. Call Klein Trial Lawyers today.

[Did You Know: If a trademarked name becomes synonymous with a product, it can lose trademark protection or become “genericized”.]

Klein Trial Lawyers—Los Angeles business litigation lawyers


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