A distinctive trademark is a trademark that “identifies and distinguishes” the relevant goods or services. This is required for a trademark to be eligible for federal trademark protection and registration at the United States and Trademark Office.
This means that trademarks are protectable only if they are distinctive. Trademarks and service marks are judged on a spectrum of distinctiveness; arbitrary and fanciful trademarks are considered to be the most distinctive.
- Arbitrary: Most unusual (in the context of their use). A great example of an arbitrary mark is “Apple” for computers, smartphones and other technology. “Apple” is a common word but its use to name a tech giant is completely random. Other examples of arbitrary marks include Penguin for books, Arrow for shirts, Subway for restaurants etc.
- Fanciful: Completely made up and only have meaning when applied to particular goods or services. Great examples of fanciful trademarks are Maalox, Xerox, Nikon, Keurig etc.
- Suggestive trademarks are also considered distinctive because they suggest of the goods or services for which the trademark is used; for example, Greyhound, Mustang, Accuride tires.
- It is not always clear whether a trademark is suggestive or not.
- Descriptive trademarks are not inherently distinctive, although they can acquire distinctiveness after it becomes associated in the minds of the public with the relevant good or service.
- This type of trademark describes a characteristic, quality, feature, or purpose of the goods or services ex. Best Buy, Bank of America etc.
- Generic terms (i.e., commonly used terms to describe something) can never acquire distinctiveness and become an enforceable trademark.
- Interestingly enough, over time previously distinctive terms can turn into generic terms. A famous example of this potentially occurring is with Velcro.
Illustrative Cases:
See e.g., WAL-MART STORES, INC. V. SAMARA BROTHERS, INC. (99-150) 529 U.S. 205 (2000); Bliss Salon Day Spa v. Bliss World LLC, 268 F.3d 494 (7th Cir. 2001)
[Last updated in October of 2022 by the Wex Definitions Team]