A trademark helps consumers identify the source of goods or services and distinguish them from offerings by other businesses. This lesson introduces distinctiveness, explains how consumers can come to associate a mark with a particular company, and shows why trademark law balances business identification against the public’s need to use ordinary language.
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Secondary meaning
Consumers’ association of a mark with a particular source, beyond the term’s ordinary meaning.
Evidence of secondary meaning
Relevant evidence may include length and manner of use, sales, advertising expenditures, and consumer surveys.
Fanciful versus arbitrary marks
A fanciful mark is invented; an arbitrary mark is an existing word unrelated to the goods or services.
Why keep descriptive language available?
Competitors and the public need ordinary terms to describe goods, services, and their features.
Preventing generic use of a mark
Businesses can encourage consumers to use the mark as a brand name with the product category.
Quiz questions
Which sequence lists the trademark distinctiveness categories from strongest to weakest?Answer: Fanciful, arbitrary, suggestive, descriptive, generic.
What distinguishes a fanciful mark from an arbitrary mark?Answer: A fanciful mark is invented, while an arbitrary mark uses an existing word unrelated to the goods.
What makes a mark suggestive rather than descriptive?Answer: Consumers must use imagination or insight to connect the mark with the goods or services.
When may a descriptive mark qualify for trademark protection?Answer: When consumers have come to associate it with a particular source through secondary meaning.
Why can a generic term not be registered as a trademark, even with evidence of consumer association?Answer: It names the product category rather than identifying a particular business as the source.