Trademark Law – How Strong is Your Mark?

A mark’s strength—which means its ability to attain and retain trademark protection—depends on the nature and content of the mark, and the relationship between the mark and the goods or services it markets.

In trademark law, marks fall somewhere along a “spectrum of distinctiveness.” The general rule of thumb is that the more distinctive a mark, the more likely it will merit trademark protection. This is because the more distinctive a mark, the more likely it will identify the source of your goods or services in the minds of your consumers. A general sketch of the spectrum follows:

1) Generic Marks:

A generic mark is one that is synonymous with what the product is. A mark that is generic cannot be trademarked. This is because generic terms identify the product itself, and not the source of the product. For instance, “Desk” brand desks would be generic.

2) Descriptive Marks:

A descriptive mark is one that describes an attribute of the product or services. A descriptive mark can be trademarked only if it has gained secondary meaning. The reason for this rule is that competitors are allowed to market similar products using similar terms because those terms describe what the product is. For instance, “Wooden” brand desks would be descriptive.

3) Suggestive Marks:

Suggestive marks are those marks that exist somewhere between descriptive marks and arbitrary and fanciful marks (described below). A suggestive mark alludes to some characteristic of the product or service, but does not specifically describe that characteristic. The contours of this category are usually somewhat hazy. For instance, “Hardwork” brand desk could be considered suggestive.

4) Arbitrary and Fanciful Marks:

Arbitrary and Fanciful marks are the strongest marks, and generally merit trademark protection. A mark is arbitrary and fanciful if it neither describes nor suggests anything about the product or service. Often times these are called “coined” marks because they are made only in reference to the source of the goods or services identified, and have no other meaning. “Kodak” is a classic example.

For continued research about marks that can be registered federally, you can review 15 USC § 1052. If you need a legal opinion as to the strength of your mark and whether it can be federally registered, please contact the Law Offices of Aaron J. Stewart at!