How Strong is Your Brand? Part II - Kennedy Law, P.C.

How Strong is Your Brand? Part II

Author: Stephen A. Kennedy

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.

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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.

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