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The nature of a statement that claims to describe reality. A descriptive theory is one that claims to describe how things really are, as opposed to how they should be. See also: prescriptive (contrast).

Descriptive, in law, refers to a type of mark that cannot be eligible for a trademark unless falling into limited exceptions. Under 15 U.S.C. § 1052(e)(1), a mark that is merely descriptive cannot receive trademark protection. A mark can be classified as descriptive “if it immediately conveys knowledge of a quality, feature, function, or characteristic of the goods or services with which it is used” (see In re Bayer Aktiengesellschaft, 488 F.3d 960, 963).

For example, a telephone company could receive a trademark naming its company orange, but a company that produces citrus fruits likely could not receive a trademark for anything similar to orange. The trademark laws do not allow descriptive marks because they do not help customers distinguish between the brand or quality of a product and unfairly harms competition. In the above example, a customer would not necessarily know that a bag of oranges labeled with “Orenge” in bold letters is referring to a brand instead of just a wrongly spelled label for oranges. Just because the spelling is different from the product will not necessarily make a mark not be descriptive. 

A descriptive mark may be eligible for a trademark in some circumstances if the mark is uniquely distinctive or has acquired secondary meaning. For marks that are not too descriptive, a trademark may still be received if the mark has obtained distinctiveness and has been exclusively used by the claiming party for five years. For example, a grocery company may receive a trademark for the company name Allmart if no one else has used similar names for five years. Allmart may be eligible because, even though the name describes the encompassing nature of the store, consumers may not be confused that Allmart is a specific company rather than a store with everything. Also, a mark may be eligible for trademark if a secondary meaning has been gained in the market for the name, such as Apple for computer products. 

[Last updated in March of 2023 by the Wex Definitions Team]