Test For Distinctiveness: How You Will Know If Trademarks Are Distinctive


If you know your trademarks and you have been researching information about this topic, then there is a big chance that you have come across the word 'distinctive'. The buzzword is distinctiveness and everyone is asking how distinctive the mark is. Is your company's marking distinctive enough? Well this is a common and an important concern. In a way trade names will not be trade names that can be used for business if these are not strongly distinctive, which means that the marks used can easily be related to the products or services they intend to represent.

The simplest equation here is that the higher the brand names' distinctiveness, the better these brand names can serve its purpose. Good thing the regulatory agencies have proposed a number of ways on how you can tell if some marks are more distinctive than the rest. These regulatory agencies have come up with categories where one can lodge the marks and where these marks can be evaluated.

There are four categories which include arbitrary marks, the suggestive marks, the descriptive marks and the generic ones.

When do marks fall into the arbitrary category? This will happen if the marks in question don't have that logical connection to the product. When it seems that the mark is life an afterthought to the product.

How do marks become suggestive? Some marks will fall into this category when the selected marks will suggest or hint on the characteristic of the product. An example for this is the Playboy magazine for men that are suggestive of the real nature of the product offered. The 7-11 chain of stores makes use of a suggestive trademark in a sense that this will give the readers and the consumers that idea about the actual operations of the store chain. In many cases, the reader or the consumer will have to exercise his creativity in order to make that logical link, which will connect the trade mark to the product or service.

Can the mark be considered under descriptive? The marks will fall into this category when the trademarks considered will simply describe the product or the service at hand. If compared with the first two, you will note that the descriptive mark is not that distinctive, and as such this is not well recommended for the business that wants to make a splash in the market. And the marks that fall into this category will get limited or no protection, unless the marks can assume that secondary meaning. And this will only happen if the person can associate the mark with the provider of the product or service.

And when do trademarks become too generic? This happens when the selected marks will only describe the general category where the products or service belong.

From the categorization alone, it will be easier to check which trademarks are more distinctive than the rest. The categorization reveals that the weakest trademarks are those that can be categorized under generic. For such reason, these marks and trade names should be avoided.

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