Distinctiveness

The Spectrum of Distinctiveness

When creating a new trademark, the overall goal is to create a distinctive mark because the approval process will be faster and the mark will receive more protection under trademark laws after registration. While it is possible for a trademark to acquire distinctiveness, the registration process is simpler if a trademark is distinctive when created.

The spectrum of distinctiveness breaks trademarks into classes which describe the range of protection a trademark will receive. The spectrum classes are fanciful, arbitrary, suggestive, descriptive, and generic. The weakest end of the spectrum is generic and the increasing inherent distinctiveness of a trademark moves it up through rest of the spectrum to fanciful, the strongest.

Fanciful marks are inherently distinctive and automatically function as a trademark. They are the strongest trademarks and have the highest level of protection. A fanciful mark consists of made-up words or images specifically created for the trademarked goods or services. It will have no meaning before its use as a trademark.

Arbitrary marks are inherently distinctive and immediately eligible for trademark registration. They are also considered the strongest trademarks and have the highest level of protection. The words or images in an arbitrary mark will have a common meaning, but will be meaningless in relation to the goods or services to be trademarked.

Suggestive marks are inherently distinctive, have the highest level of protection, and are immediately eligible for trademark registration. A suggestive mark hints at a quality or characteristic of the goods or services to be trademarked and so requires imagination, thought, or perception to interpret the exact nature of the goods or services.

Descriptive marks are not inherently distinctive and are not immediately registerable. A mark is considered merely descriptive if just describes the goods or services to be trademarked and requires little or no imagination, thought, or perception to interpret the exact nature of the goods or services. However, a descriptive mark can acquire distinctiveness by establishing secondary meaning. Even though the mark is merely descriptive, if consumers identify a product with a specific mark/brand over a period of time or through widespread marketing and advertising, the descriptive mark will achieve secondary meaning and be eligible for registration.

Generic marks have no distinctive qualities and are not registerable. A generic mark is the common name for the goods or services and will have no distinctive characteristics that would make it eligible for trademark registration. As the generic mark only identifies the goods or services and does not distinguish the good and services from another businesses, it is not possible to acquire secondary meaning for a generic mark.