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How Strong is your Brand? The 5 Levels of Trademark Protection

Updated: Feb 21, 2022

When considering a brand name, it is important to keep these levels of trademark protection in mind. You want to choose a mark that will afford you the strongest level of trademark protection, and that will most easily allow you to prevent third-party use of your mark. Stronger marks are easier to protect than weaker marks. When a mark is weak it does not have the same legal protections as a stronger and more distinctive mark. There are 5 levels of trademark protection: Fanciful, arbitrary, suggestive, descriptive and generic.

1. Fanciful marks

A fanciful mark is essentially a made-up word and affords your brand the highest level of trademark protection. Fanciful marks are inherently distinctive and are immediately registerable. These words are not found in the dictionary and are created to represent the brand. Examples of fanciful marks are Pepsi for the soft drink and Adidas for sneakers/clothing.

2. Arbitrary marks

Arbitrary marks are also inherently distinctive and are afforded a strong level of protection. Unlike fanciful marks, arbitrary marks are words that already exist. What affords them a strong level of protection is that the name of the mark bears no relationship to the goods or services being sold. Examples of arbitrary marks are Apple for computers, and Carnival for cruise ships.

3. Suggestive marks

Suggestive marks are inherently distinctive too, but fall among the lowest level of the “strong” trademark protection. A suggestive mark hints at or suggests the nature of the goods or service without actually describing the goods or service. It requires some imagination and thought to figure out what goods or services the company offers, and doesn’t merely describe the goods or service. An example of a suggestive mark is Jaguar for cars. It suggests speed but doesn’t immediately portray a car manufacturer.

4. Descriptive marks

Descriptive marks are not inherently distinctive because they merely describe the goods or service. A trademark is a word, phrase, symbol and/or design that identifies and distinguishes the source of the goods or services of one party from those of others. If the mark is merely descriptive, then it is not serving the purpose of a trademark. It is not identifying the source of the goods or services. Examples of descriptive marks are Cheesy Pies for pizza. In order for a descriptive mark to be registerable, it must have a secondary meaning. Secondary meaning is proof that consumers associate the mark with the brand and not the product itself, despite the mark being descriptive. An example of a mark that may be considered descriptive but has developed secondary meaning is Sharp for televisions and Holiday Inn for hotel services.

5. Generic marks

Generic marks are the common, everyday name for goods and services. Everyone has the right to use such words to refer to their goods and services so generic marks cannot qualify for trademark protection, and are not registerable or enforceable against third parties. Examples of a generic mark are The Bicycle Shop to sell bicycles or The Ice Cream Shop to sell ice cream.

If your phrase, word, symbol, or logo is too generic, it will be difficult to qualify for trademark protection. It may be worthwhile to consider modifying your mark so that it more easily qualifies and will afford strong trademark protection. Understanding the different levels of trademark protection will also help you determine whether you should make changes to your mark before applying for to trademark your name and/or logo. So grab your pen and paper and get creative!


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