A trademark is a brand that tells a customer the source of the goods and/or services s/he is purchasing. They answer questions like: Who manufactures this clothing? Who made this food? Whom am I asking to fly me on vacation? Who made this phone? The answer to those questions is often a shortcut to a company’s identity–its brand or trademark.
We travel in trademarks all the time. Let’s say we’re going on a date. We have to decide: Should we go in my Toyata Rav4 or your Ford F150? Or where should we eat? Should we go to Chic-fil-A, Olive Garden, or have PapaJohns pizza delivered? Those names, or brands, are all trademarks.
Not all trademarks are created equally. Some marks are stronger than other marks. There are four kinds of trademarks: (1) fanciful marks, (2) arbitrary marks; (3) suggestive marks, and (4) descriptive marks.
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A Fanciful Mark consist of words that do not mean anything in-and-of themself. They are created out of thin air to be a trademark, like “Polaroid” or “Xerox.” Because they have no other association, they strongly identify the consumer with the product that they represent.
An Arbitrary Mark consists of words that mean something, like the word “apple.” But the word is not used to describe fruit from a tree, but a record company, like Apple Records, or an electronics company like Apple, Inc. Another example of an arbitrary mark is fond in the word “Indian.” It is not used to describe an indigenous North-American people, but an Indian motorcycle, or a baseball team, the Cleveland Indians. The owner of a trademark does not have a monopoly on a word except for its use in a particular area. For instance, arbitrary marks may be used by more than one group of people, but they can only be used to distinguish the source of specific goods or services like a record company, an electronics company, a motorcycle manufacturer, or a baseball team.
A Suggestive Mark does exactly what you would expect it to do–it suggests what it is providing. For instance “Coppertone” suntan lotion suggests that when you use it at the pool or the beach your skin will obtain a copper like tone or hue. “Husky” suggests a tool that it is going to be strong and enduring.
A Descriptive Mark merely describes the product or service it represents. For instance, if the word “wood chipper” is used to describe a machine that chips wood, it is considered to be merely descriptive in that it describes what the tool does. The same would be true of “lawn mower” to describe a machine that mows the grass. Because a descriptive mark merely describes what a product or service is, it is usually not granted protective status as a trademark. However, if the descriptive mark is associated by people with a particular good or service (called secondary meaning), it is a viable trademark that can be protected. Examples of merely descriptive marks that have acquired secondary meaning are “American Airlines” (for an airlines located in the United States of America), “Southwest Airlines” (for an airline with a hub in Dallas, TX), and “booking.com” (for a service used to book hotel rooms worldwide).
As you think about a trademark for your goods or services, ask yourself if you can create one of the stronger marks–a fanciful mark or an arbitrary mark–so that the consumer has a good shortcut to your product or services. The stronger your trademark is, the easier it will be to protect it.
If you’re thinking about creating a new trademark and would like to discuss it, please let me know. I’d be happy to talk with you. Happy branding!