Business is not just about providing products and services that work. As a small business owner, you should establish an image that sets you apart from your competitors. A trademark is your product brand; it’s what customers recognize. This may be an expression, word, domain name, product, logo, symbol, or any other device that sets you apart. If you’re a service provider, this is known as your service mark. Any mark that is registered with the U.S. Patent and Trademark Office must be distinctive. To be distinctive, it must be fanciful, arbitrary or suggestive.
These are the most distinctive trademarks. Consider Xerox. This word has no other meaning in the English language. Letters can be random or strategically placed to evoke a certain image or sound. Kodak, for example, is a fabricated word. Company founder George Eastman simply liked words that start with the letter “k.” He used an anagram to come up with the name, Kodak. He wanted an unassociated word that was short and easy to pronounce.
Fanciful trademarks are difficult to achieve. As a business owner, you have to educate the public and create a product association from scratch. This usually requires an aggressive marketing strategy and a lot of time.
Apple, Camel and Blackberry are examples of arbitrary trademarks. These are English words with actual meanings, but they’re also used to describe consumer products. You can trademark a word that is in the dictionary, but only if that word has no relation to your company or products. For example, you cannot legally register “orange” if your company produces orange juice. Conversely, Apple is allowed a fruit-inspired trademark because the company sells computers.
When developing an arbitrary mark, you still need to educate your audience through brand recognition. Consider using adjectives that fit the feel or culture you are trying to create. However, always be mindful of your competitors and keep your mark unique.
These are words or phrases that actually relate to a particular product, service or company. A suggestive trademark indirectly implies a certain level of quality but requires some imagination on the part of the consumer. Examples include Coppertone sun lotion, Playboy magazines for men, 7-Eleven convenience stores, Mustang sports cars, Microsoft software and Airbus airplanes. This category leaves room for grey, but the U.S. Patent and Trademark office will ultimately decide whether or not your mark is suggestive.
A descriptive mark is not distinctive enough to warrant private ownership. For example, an auto manufacturer cannot register the term “reliable” for a line of heavy-duty trucks. Likewise, the Remington company was unable legally register the word “lektronic” for a particularly line of electric shavers.
It is possible to secure a trademark on a descriptive word, but only if the word is a secondary meaning for a product or service. The Sharp Corporation was able to legally protect its adjective trademark because the word is a secondary feature associated with the quality of a television set.
Finally, some terms are simply too general to be assigned exclusively. Generic marks are the least distinctive and will never actually become trademarks. Consider a smartphone or e-mail. These words simply identify a particular product type. However, it’s possible for a trademark to lose its distinctive qualities and become generic, but this usually involves an intense legal battle. Former trademarks include aspirin, cellophane, escalator, vaseline and linoleum. Alternatively, Xerox, Nintendo and Kleenex are examples of companies that have won trademark battles.
Trademarks for Small Businesses
It’s difficult to change a trademark once you are established, so it’s important to do your research up front. Try to be unique and strategic, but avoid going too general. Few businesses ever face the pressure of trademark generalization, so don’t be afraid to get a little creative.Legal Disclaimer
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