Many once-small businesses have built their brands and reputations off the strength of their trademarks. Apple, Amazon, Nike, ExxonMobil are some of the world’s most recognizable brands because they have strong trademarks that are fanciful. Fanciful trademarks are the strongest trademarks because they are the most distinctive.
A trademark, as defined by the U.S. Patent and Trademark Office (USPTO), is a “word, phrase, symbol and/or design” that helps consumers identify the source of a particular product. (If your business provides services, you can create a service mark instead.) Would Nike be a dominant worldwide brand if consumers did not immediately think of the company when they see the signature “swoosh” on a shoebox or garment? And would Nike be the same multinational behemoth if it were called Premier Shoes or Athletic Wear? It wouldn’t be, and that’s by design.
The word “Nike” is not a word that you would commonly associate with a clothing company — that’s the point. A fanciful trademark is a word or phrase created solely to function as a trademark. Because fanciful trademarks are the strongest type, protecting them against trademark infringement is quite easy. It also gives you an advantage if you wind up in court because of a trademark dispute.
Spectrum of Distinctiveness
Fanciful marks are at the top of what’s called the “spectrum of distinctiveness.” Trademarks fall into one of five categories on this spectrum. The other four levels of distinctiveness, from strongest to weakest, are:
- Arbitrary – Just below fanciful marks are arbitrary marks. These marks consist of words that are commonly used but have no connection to the underlying products or services. Apple is a good example of an arbitrary mark. We all know an apple is a fruit, but here it is used arbitrarily to identify the world’s most valuable technology brand.
- Suggestive – This type of mark hints at the nature of a brand’s products or services. Think Netflix and Coppertone.
- Descriptive – Unless descriptive trademarks convey some sort of secondary meaning or quality of the brand’s products or services, it will generally not receive federal trademark protection. Descriptive marks describe the nature of a product or service. American Airlines is an example of a descriptive mark that has earned federal protection through a secondary meaning.
- Generic – Generic terms that literally describe a product or service are not usually words that can be trademarked. For instance, you wouldn’t be able to trademark the word “applesauce” or the term “carpet cleaning.” Occasionally, however, a once-distinctive brand name, like aspirin and escalator, becomes so commonly used that it is now considered to be generic, and the company must take steps to protect its trademark under those circumstances.
A Strong Trademark Means a Strong Business
If you want to build a powerful brand, it’s imperative to create strong trademarks and protect them through an application with the USPTO. Working with an attorney to set up your company’s intellectual property right the first time can make this process a lot easier and cheaper. Integrated General Counsel has many years of experience helping entrepreneurs launch their business ideas, and we’d be honored to do the same for you. Get in touch with our team here to set up your appointment.
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