The Importance of Creating A Protectable Brand

Creating a protectable brand is at the heart of any startup business. Not only should your brand be marketable, it should also be protectable under trademark laws. The easiest way to know your brand meets both criteria is creating a strong brand. That starts with your name.

Naming your business is an important first step and the foundation you build from. If you choose a weak brand name, your chances of protection are low. So what constitutes a strong brand name? How do you gain exclusive trademark rights?

The spectrum is split into two categories: descriptive and generic trademarks: your weaker marks, and fanciful, arbitrary and suggestive: your inherently descriptive trademarks.

Trademark protection will provide a type of safety net for your business or services. If you are in the beginning stages of branding, these four trademark categories will help you gauge exactly how strong your brand is.

A Generic Trademark

A generic trademark is a trademark or brand name that, due to its popularity or significance, has become the generic name of – or synonymous with – a general class of product or service. Did you know the trampoline was originally intended to be sold by a single individual, Larry Griswold?

Without specific language it is nearly impossible to protect that form of branding – usually against the wishes of the business holder. Nowadays anyone can create and sell a trampoline. You don’t want to be the next Larry.

To know how best to choose your brand and then to protect it, it is an excellent idea to consult the professionals. They can help you find the best distinctive brand so that once you create it, you know you can protect it.

A Descriptive Trademark

A descriptive trademark is a word that identifies the characteristics of the product or service. It is similar to an adjective. An example would be “cold and creamy” for an ice cream business. An easy way to determine your trademark would be to ask yourself, “Does this word describe the product or service?” If the answer is yes, the mark is probably descriptive.

Here are a few reasons why you should shy away from descriptive words or phrases:

  • They are conceptually weak and hard to enforce, so are usually unprotectable from competitors.
  • They are expensive to defend, because they are weak.
  • The time and money involved to register a descriptive mark (if you succeed) is high.
  • Descriptive marks don’t have a high sale value if you decide to sell/license the trademark or business.

Of course, there are exceptions to the rule: American Airlines gained entitlement to a trademark because they had an established business and had proven their value in association to the trademark.

So unless you have been in a well-established business for a long time and can prove credibility, or your name is Kardashian, descriptive trademarks are not ideal.

A Suggestive Trademark

A suggestive trademark is a distinctive – but not descriptive – mark which does not describe a product, but suggests or references it. This requires consumers to exercise imagination to connect the mark with the product.

“7-Eleven” is a great reference to a suggestive trademark. They are a convenience store that was initially open from 7 AM – 11 PM. Another example is Greyhound Bus, which suggests the service is fast, like a greyhound dog (which is their logo). These both reflect what the mark is or does with a little creativity.

A Fanciful Trademark

A fanciful trademark is when names and brands are not associated with any meaning until the launch of their company. “Starbucks” is the perfect example of this. They took a word not commonly in existence prior to use of the brand. Now everyone knows what you are referencing when they hear it.  

Just like the fanciful name suggests, they are essentially made-up brands. This grants them an advantage when it comes to trademarking due to the uniqueness and lack of competition.

An Arbitrary Trademark

An arbitrary trademark is a common-knowledge English word used to describe a product that doesn’t have any connection to the common definition. “Apple” is an arbitrary trademark because their product has nothing to do with the actual word “apple.”

But now, thanks to its popularity, we can associate computers with the word. This lack of word association puts you in a near-guaranteed category of protection.

Marketing is key to growing a business – but without protection, you won’t get the momentum you seek. This is why it is a good idea to get an attorney involved in this process.

A trademark attorney can help you understand the strength of potential marks and what level of distinctiveness they have when handed over to the USPTO. Develop brand strength early and trademark protection will always be on your side. Contact Trestle Law today to make sure you are on the right path to creating a protectable brand.