A trademark is one of the most important assets a business will ever own. A good trademark will distinguish a business from the competition. A poor trademark may lead to legal disputes and dull your marketing efforts. Following the guidelines below will help you select a good trademark.
Registering a trademark provides several advantages, including making it easier to protect and enforce your rights against infringers. For more information regarding the benefits of registering a trademark read Why Register Trademarks? As you will read below, certain types of words are inherently difficult to register and should be avoided.
When considering what would make a good trademark, the strength or distinctiveness of the mark matters. In general, the stronger or more distinctive the mark, the easier it is to register and protect from use by another. Trademarks can be categorized as having the following levels of strength or distinctiveness, from strongest to weakest:
a. Fanciful Marks made up words that have no relation to the goods being described (e.g., EXXON for petroleum products).
b. Arbitrary Marks existing words that contribute no meaning to the goods being described (e.g., APPLE for computers).
c. Suggestive Marks words that suggest meaning or relation but that do not describe the goods themselves (e.g., COPPERTONE for suntan lotion).
d. Descriptive Marks marks that describe either the goods or a characteristic of the goods. Often it is very difficult to enforce trademark rights for descriptive marks unless the mark has acquired a secondary meaning (e.g., SHOELAND for a shoe store).
e. Generic Terms words that are the accepted and recognized description of a class of goods or services (e.g., computer software, facial tissue).
Because strength matters, choose words that would be strong trademarks. For example, TIGER for computers, or a made up word such as ZIPPO for blankets. These words are memorable, will help your customers remember your company name, and are easier to protect and enforce.
The goal is to select a trademark which is as unique and distinctive as possible; therefore, avoid generic and descriptive words. Avoid words which describe the nature or quality of the goods or services sold when selecting a trademark. For example, the mark Cold Beer for use with malt beverages cannot be registered because it describes the actual product being sold. If registered, it would prevent anyone from using the terms Cold and Beer to describe their malt beverage.
Surnames usually cannot be registered as trademarks. The mark Wilson Power Boats, for instance, is a poor choice for a trademark because the word Wilson is a surname (and the rest of the mark is descriptive).
Using words for a trademark that will likely cause the consuming public to be confused or mistaken about the source of a product or service sold creates a likelihood of confusion. A trademark which is confusingly similar to a registered trademark cannot be registered. When a likelihood of confusion exists, there may also be trademark infringement. For example, the mark Tiger-PJs cannot be registered if the trademark Tiger PJ has already been registered for a similar type of product.
IBM and ATT are distinctive trademarks because their respective owners poured tens of millions of dollars into making the marks famous. Even a poor trademark can be made famous if you throw enough money at it. However, acronyms are intrinsically difficult to remember. On the other hand, colorful words are easily remembered. For example, LBS Network Solutions is not as memorable as Phoenix Network Solutions. Similarly, avoid using numbers in a trademark as they tend to be less memorable. For more information about selecting a strong trademark, feel free to contact our office at (954) 903 -1966.
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