The Spectrum Of Distinctiveness In US Trademark Law

by Zach Stevens

You may have heard that “anything can be trademarked”, but this is far from the truth in US trademark law.

There is a common term in the trademark world – The Spectrum Of Distinctiveness which classifies marks into 5 basic categories: Generic, Descriptive, Suggestive, Arbitrary, Fanciful.

This is essentially a spectrum where, on one end, you have zero chance for trademark registration and, on the other end, your chances are almost guaranteed.

This also comes with implications as to the scope of protection your mark will get by law. On the low end, little-to-none; on the high end, as much protection as possible.

US Trademark Law

One thing that US trademark attorneys do with their clients is consult them on the strength of their marks based on where it falls within this spectrum, and often advice is given to bring it further to the strong end so that not only will the chances of trademark registration be higher, but the level of protection the mark gets will also be more powerful.

Let’s cover these 5 categories a little more in-depth.

Generic

If you are trying to trademark a generic word or phrase that is so descriptive it couldn’t even be recognized as representing a business, product, or service in everyday conversions, you’re wasting your time.

You can’t trademark the phrase “All’s well that ends well”. You can’t trademark the words “wallet”, “sink”, or “carpet”. 

Descriptive

These typically involve mere descriptions of a product or service – its qualities, features, purpose, or characteristic function. Examples would be:

  • Dang Good Pizza
  • Affordable Water Slides
  • Difficult Puzzles

Now, there are some examples of things like this actually being trademarked, but this is only after they’ve taken on a secondary meaning – something that actually makes it distinct – from its mere description.

Suggestive

The line between a Descriptive and a Suggestive mark isn’t very fine. The difference is that a Suggestive marks requires “imagination, thought or perception to reach a conclusion”. This is opposed to a Descriptive mark which on-the-nose describes the product/service.

Examples of Suggestive marks would be:

  • DRI-FOOT
  • SPEEDI BAKE
  • MASTER PLUMBER
  • HEALTHY HOME VACUUM
  • GLOBAL GROWERS

Arbitrary

Now we’re entering into the much-more-likely-to-be-trademarked realm of the spectrum. 

Arbitrary marks can be anything (seriously, basically anything) so long as they have absolutely nothing to do with whatever you’re selling.

Apple is one of the most common Arbitrary trademarks, and the reason it’s Arbitrary and not Generic or Descriptive is because it’s an indicator of a product that has nothing to do with apples – computers.

Ladybug Brewing Company could be trademarked, or Comet Antivirus. These are fairly easy to come up with.

Not only do these have a high chance of being trademarked, but they also get a pretty wide scope of protection by US trademark law.

Fanciful

These are totally made up names and/or symbols with no relation to… well, anything except for the products/services indicated by them on the market. Think of that band whose name is a symbol (Prince), or Yandex, Linux, Rolex, and Xerox. These names mean absolutely nothing in themselves, but they represent very specific products and services.

Fanciful marks are the most likely to be trademarked and come with the widest scope of protection under US trademark law.

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