In trademark law, distinctiveness is key. The more distinctive a mark, the stronger its legal protection—and the easier to register and enforce the mark. Trademark law classifies marks along a spectrum of distinctiveness, ranging from inherently protectable to completely un-protectable. Understanding where your mark falls on this spectrum is critical to selecting and building a strong brand.
The Trademark Distinctiveness Spectrum
1. Fanciful Marks (Strongest)
- These terms are invented or made-up words with no prior meaning.
- Examples: Kodak, Exxon, Xerox
- Legal status: Inherently distinctive, strongest protection.
2. Arbitrary Marks
- These terms are real words used in an unrelated or unexpected way.
- Examples: Apple (for computers), Camel (for cigarettes)
- Legal status: Inherently distinctive, strong protection.
3. Suggestive Marks
- These terms hint at or suggest the nature of the goods or services without directly describing them.
- Examples: Netflix (internet + flicks), Coppertone (suntan lotion)
- Legal status: Inherently distinctive; eligible for protection without proof of secondary meaning.
4. Descriptive Marks
- These terms describe a characteristic, quality, purpose, or function of the goods or services.
- Examples: Cold and Creamy for ice cream, Quick Print for printing services
- Legal status: Not inherently protectable. May only be registered if the owner can prove acquired distinctiveness or secondary meaning, demonstrating that consumers associate the term with a specific source rather than as a description of the underlying product.
5. Generic Terms (Weakest)
- These terms are the common names for products or services.
- Examples: “Computer” for computers, “Bicycle” for bikes
- Legal status: Never protectable as trademarks. They belong in the public domain.
Why It Matters
Choosing a mark on the stronger end of the spectrum (fanciful, arbitrary, or suggestive) not only improves your chances of registration but also gives you broader legal protection against would-be infringers. Adopting descriptive and generic terms—which some marketers find tempting because they immediately identify the underlying product—often come with legal complications or no protection at all.
When selecting a brand name, working with trademark counsel can help you strike the right balance between market appeal and legal strength.
