How Strong is Your Brand? Part II

November 13, 2015

In continuing our discussion of the trademark spectrum, we will be reviewing “Descriptive” marks on the blog today. Descriptive marks describe an ingredient, quality, characteristic, function, feature, purpose or use of the specified goods or services. An example of a descriptive mark would be the mark AFTERTAN for lotion intended for use after tanning. AFTERTAN merely describes the product itself.

Screenshot (10)

A descriptive mark is only eligible for federal trademark registration once it has acquired secondary meaning, also known as acquired distinctiveness. Secondary meaning is acquired when the public associates the primary significance of a product feature as the identification of the product, rather than the product itself. For example, the mark AMERICAN AIRLINES merely describes just that, an American airline company. However, the AMERICAN AIRLINES brand is instantly recognizable to most consumers. Thus, the AMERICAN AIRLINES mark has acquired distinctiveness, or secondary meaning, in the minds of the consumer.

The farther your potential mark is along the spectrum, the higher the likelihood of successful registration with the USPTO. Acquiring secondary meaning usually takes many years and a high monetary investment into your brand. It is more advisable for a potential mark to fall somewhere higher in the spectrum, from suggestive to fanciful.

Stay tuned next week as we continue along the spectrum with “suggestive” marks.

 

Recent Posts

Kennedy Law Wins Final Judgment for $6.5 Million

DALLAS--(BUSINESS WIRE)--Dallas-based law firm Kennedy Law, P.C. announced that it won a final judgment for $6.5 million for Commerce Street Capital against First United Bank & Trust Company and Durant Bank Corp. for breaching an investment banking agreement. The...

Hate Speech, The Sequel

On July 20, 2017, I posted a blog entitled Hate Speech Online. That blog recounted the disastrous consequences that one potential client endured after posting a hateful statement on Twitter. A third party that the potential client did not know re-posted the tweet for...

Should I Sign an NDA with My Employees?

There are a number of different situations in which you, the employer, may find it necessary to sign a non-disclosure agreement (NDA) with your employees. You want to develop trust with your employees, but you also want to be sure your business information is...