You’re watching Minute Law with me,
Maria Spear Ollis of Spear IP. Trademark strength is not something that
designates some kind of coolness factor It measures a trademark’s protectability.
There’s something called distinctiveness, which, it’s — it’s kind of the ability of a
trademark to be identified as a source- identifier rather than just a description.
In other words, you see the trademark and a distinctive trademark
will tell you right away that it is a trademark designating and it’s a certain
brand’s product or services. Now there’s a spectrum of trademark strength that
comes into play when you might be choosing your brand name; it also comes
into play when you’re determining how strong — “strong” — a trademark is.
And at the bottom of the barrel you’ve got GENERIC trademarks. They’re not actually
trademarks at all, they’re more pure descriptions of what they are: “coffee” in
connection with coffee — that’s a generic word for coffee.
“Genericide” is something that happens when a trademark becomes generic.
Band-aid, Kleenex, thermos — these are all things — terms — that people use whether or
not they’re referring to those specific brands. Next, there are DESCRIPTIVE
trademarks, and those are marks that describe a characteristic or another
element of the product or service that’s offered under that trademark.
Descriptive trademarks can acquire that distinctiveness over time. So think of
brands like Bed Beth and Beyond or Sports Authority. These are pretty descriptive
trademarks if you look at them but they’ve been used for so long that
everyone knows Bed Bath & Beyond, everyone knows Sports Authority.
SUGGESTIVE trademarks are kind of one step above descriptive trademarks. And one just
suggestive trademark be LYFT (L-Y-F-T). You don’t automatically
know that — just from reading word “lyft” — that it’s a rideshare service, but it
kind of suggests, you know, “taking a lift” might suggest the nature of the
goods or services rather than flat-out describe them. Next are ARBITRARY
trademarks and that’s second to best in terms of strength. Think of a normal,
existing word that is arbitrarily paired with an unrelated product or service. First
thing that comes to mind is APPLE, right Apple is a fruit, but in connection with
computers or smartphones or any of other Apple’s products you know it’s an
arbitrary pairing. BUTTER in connection with nail polish is another. And finally
there are FANCIFUL trademarks, and a fanciful trademark is a completely
made-up term used in connection with a product or service. SPOTIFY is always my
go-to example. It doesn’t mean anything but it is a unique, creative, made-up word
used in connection with a music streaming service and so that makes it a
pretty strong trademark. So I hope that helps you learn a little bit about the
spectrum of trademarks strength and kind of why it’s important and I’ll see
you next time.