Strength
of Mark

Selecting a unique and distinctive trademark is an important component of developing a successful business.

The inherent strength of a mark is not only instrumental in the development of brand recognition among consumers, but also has a bearing on the legal protections available to your client.

Generally, marks that are inherently distinctive are afforded higher levels of protection than marks that are less distinctive and/or in use by multiple parties within a market or across markets.

The inherent strength of a trademark is most often assessed on a spectrum of distinctiveness.

The most commonly discussed categories of trademark strength, from strongest to weakest, are as follows:

Fanciful

A fanciful mark is a trademark that is highly unique and inherently distinctive. Sometimes referred to as “whimsical” marks, fanciful marks consist of invented terms that have little or no meaning beyond the trademark itself. As such, fanciful marks have no other purpose than identifying the mark holder and its services and are considered highly distinctive. Examples: Google, Nike

Arbitrary

Arbitrary marks are trademarks that consist of common-language words that have no connection to the product or service they are used to describe. Because the words used in arbitrary marks have no logical connection to their mark holder’s services other than through deliberate marketing efforts to educate consumers and build such a connection, arbitrary marks are considered distinctive. Examples: Apple, Amazon

Suggestive

Suggestive marks retain a level of distinction while simultaneously hinting at the type of product or service they describe. Suggestive marks differ from descriptive marks in that they require some level of imagination or thought on the part of the consumer to understand the product or service being offered. Examples: 7-Eleven, Sweetarts

Descriptive

Descriptive marks typically describe the mark holder’s services in terms of product attributes. Such marks are unlikely to be afforded trademark protection as they lack sufficient distinction to be associated by consumers with one source. Examples: Bufferin, Chap Stick

Generic

Generic terms are words that are in common, everyday use that do not suggest any unique source attribution to a specific provider of a particular product or service. For example, “soap” is a generic word that is used to describe many cleaning products across a variety of product categories. The word “soap”—in and of itself—would not be eligible for trademark registration because the public does not elevate the word beyond its common dictionary usage to indicate a specific source or provider.

Strength of Mark

Selecting a unique and distinctive trademark is an important component of developing a successful business.

The inherent strength of a mark is not only instrumental in the development of brand recognition among consumers, but also has a bearing on the legal protections available to your client.

The inherent strength of a trademark is most often assessed on a spectrum of distinctiveness.

The most commonly discussed categories of trademark strength, from strongest to weakest, are as follows:

In general, fanciful, arbitrary, and suggestive terms are considered inherently distinctive, and as such, are afforded various trademark protections.

Descriptive marks can be given trademark protection in cases where the mark has acquired distinctiveness through secondary meaning.

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Strength of Mark

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Acquired distinctiveness

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Strength
of Mark