When it comes to intellectual property, there are a few key concepts that business owners need to understand to make informed decisions about protecting their creations. One of these concepts is the spectrum of distinctiveness, which refers to how identifiable a mark is to consumers. The more distinctive a mark is, the greater the chance that it will be registered with the US Patent and Trademark Office (USPTO). This article will explore the spectrum of distinctiveness and its impact on registrability. Stay tuned!
The Spectrum or Uniqueness
There are many different ways to be unique. You can be the only one in the world with a particular talent or characteristic. You can be the only company that offers a particular product or service. Or you can simply have a unique brand identity that sets you apart from your competitors.
Of course, not all unique things are created equal. Some unique things are more valuable than others, and some are more difficult to protect. When it comes to intellectual property, there are two key factors to consider: registrability and distinctiveness.
Registrability is a measure of how easy it is to obtain legal protection for a unique thing. For example, it is relatively easy to trademark a unique name or logo, but it is much harder to trademark a unique product design. Distinctiveness is a measure of how unique a thing is.
Before we go deeper into that, let’s talk about the basic benefits of a federally-registered trademark. A federally-registered trademark can help the owner keep other people from using a similar mark that is in the same market and might cause confusion among consumers. To receive and enforce a federally registered trademark, a mark must be distinctive. When your application is under review at the USPTO, an examiner attorney will determine the distinctiveness of your applied-for mark.
A mark is considered distinctive if a consumer can identify the source of goods and services based on just looking at that mark. Your applied-for mark is more likely to be approved if it is unique.
The strength of the mark is determined based on the spectrum of distinctiveness, which ranges from generic on one end, to arbitrary and fanciful on another. The more distinctive or unique your mark is the stronger the trademark protection afforded to it will be. Be mindful that a trade dress will have to go under a somewhat different analysis.
Generic vs Arbitrary vs Suggestive?
A generic mark usually describes a good or service that a business offers, like “dairy” for milk or “burger shack” for a burger restaurant. A generic mark is not afforded any kind of trademark protection, ever. The best type of branding is when your company can be seen as unique. This happens when your brand is either arbitrary or suggestive. Having this type of branding is great because it catches people’s attention and makes them more likely to buy from you. The only problem is that coming up with these ideas can be difficult.
An in-house team is often necessary to create that unique or distinctive brand. However, many brands have been successful without one by building a following and developing their trademark with the help of experts like copywriters, designers, and other creatives.
An arbitrary mark uses an existing word or phrase not creatively related to the product and is not associated with the good or service that someone is trying to provide. For example, Apple, for computers, or Call Your Mother, for a bakery.
A suggestive mark is something that suggests what it’s trying to describe but leaves you to imagine what it might mean or relate to. For example, Jiffy Lube implies a quick oil change. Mr. Clean implies clean supplies.
These are some, but not all, of the things you need to be aware of when developing a distinctive mark. The trademark registration process can be long and complicated, but it’s well worth the hassle in most cases.
To help you decide whether a mark is distinctive enough to be federally registered, we’ve outlined the spectrum of distinctiveness in this post. This will give you a general idea of what level of distinction is necessary for trademark protection. Keep in mind that this is not legal advice and we always recommend speaking with an attorney if you have specific questions about your trademarks. If you want more information about how to protect your brand or need assistance applying, please don’t hesitate to contact us for a free discovery call. We would be happy to chat with you about your business and see how we can help.
If you want to make sure your hard-earned brand name is protected or need assistance applying, please contact us for a discovery call. We would be happy to chat with you about your business and see how we can help
DISCLAIMER: DrishtiTalks is made available by the law firm, Drishti Law, LLC, for educational/informational purposes. The intent of DrishtiTalks is to provide a general understanding of the law and not to provide legal advice. The use of this site, commenting on posts, or sending inquiries through the site or contact email, does not confirm an attorney-client relationship between you and the Blog, DrishtiTalks, or Website publisher, Drishti Law, LLC. The Blog/Website should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.
Sahil Malhotra
Sahil Malhotra is an Intellectual Property Attorney, who founded Drishti (“vision”) law because of his vision in protecting dreams and ideas.
He provided individuals and small businesses with an opportunity to enhance their IP’s value by helping them register trademarks and successfully argue against office actions. In addition to his training and experience, he has been deeply involved in the multifaceted IP portfolio at UIC and continues to be associated with IP organizations and conferences.
To know more about Sahil Malhotra — Click Here
You may follow Sahil Malhotra on Facebook: Sahil Malhotra and on Instagram: @Sahil Malhotra