Trademark Talks with Attorney Bailey (Part 3)

Brad Smith • June 10, 2020

Trademarks can be complicated. Attorney Amy Bailey talks through the different types of trademarks and how some trademarks are stronger than others.

There are trademarks everywhere

With many trademarks out there, there are different types of marks that make one stronger than the others. Strong marks are inherently distinctive. Marks that satisfy particular criteria distinguish ones' goods/services from those of competitors. The weaker the mark, the more similar competitors can make their marks.

Stronger the better

There are generic, descriptive, suggestive, arbitrary, and fanciful marks.

Generic marks are often not able to be registered. Those who are approving the registration do not want to take away those common names because it prevents others from selling their product. Generic brands like Chapstick, Bandaid, and Kleenex are often subject to “genericism”. However, they have become household names over the years. They could potentially lose registration due to the lack of distinction. The more distinctive, the more likely it will become a trademark.

Descriptive marks are those that describe goods and services. Certain words or phrases are hard to register because they would be taking the name away from others to use that may help describe their current business. These often are not registered because of the lack of distinction.

Suggestive marks are often used for a play-on-words. However, a very small number of people may understand that phrase. For example, “Sugar and Spice” may be the name of bakery. However, it is also a phrase not directly used for bakeries.

Lastly, we have fanciful marks. Fanciful marks are the strongest type of mark. They are often made up words that have no meaning to them besides what the company offers or what the brand is. These are more likely to be registered for marks.

There are limitations to trademarks such as individual generic words cannot be a trademark to the company, but the phrase can be given a mark to. For example, Home Depot. “Home” and “Depot” by themselves is not trademarked by the company, but Home Depot as a phrase is.

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