distinctive trademark

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 reviewed in October of 2022 by the Wex Definitions Team ]

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