A trademark is a valuable business asset that you need to protect, but you can only protect it if it’s distinctive. In other words, if your mark, such as your brand name, isn’t distinctive, you could face time-consuming, stressful, and expensive problems down the road.
What Does It Mean to Be Distinctive?
In order to be recognized under trademark laws as protectable, the words and/or design that you want to trademark must have different and recognizable qualities or characteristics that make it easy to distinguish from anything else.
Descriptive vs. Distinctive: An Inverse Relationship
A trademark is only considered to be distinctive if the meaning of the words used in the mark do not describe the products or services represented by the mark.
There is an inverse relationship between “descriptiveness” and “distinctiveness.” The less descriptive the words, the more distinctive the mark and the more protection it has.
Think of it this way, if the meaning of the words used in a brand name describe the products or services being offered, than trademarking those words would deprive other people and businesses from using those words to describe their own products and services.
Imagine if a company in the computer and technology industry trademarked the word computer. No one else would be allowed to use that name to refer to their own computer products in any way and at any time!
The Spectrum of Trademark Distinctiveness
The levels of trademark protection increase as the mark becomes more distinctive, which is visually represented on the Spectrum of Trademark Distinctiveness infographic below.
How to Get on the Right Side of the Trademark Distinctiveness Fence
When you think about your brand name, imagine it as being on one side of the trademark distinctiveness fence or the other as show visually in the infographic below.
On the distinctive and highly protectable side of the fence are coined or fanciful marks, arbitrary marks, and suggestive marks. These types of marks have strong, stronger, and the strongest levels of protection under the law.
On the less distinctive and weakly protectable (or not protectable at all) side of the fence are descriptive marks and generic terms. These types of marks have weak protection under the law or no protection at all.
If you want to protect your brand name in the future, so others can’t use it and potentially damage your reputation and business, make sure you pick something that can land on the distinctive side of the fence and is near the top of the spectrum of trademark distinctiveness. Get the help you need, and do it right the first time because this can become a very time-consuming and expensive mistake to learn later!