In the above classifications, a suggestive mark is a mark that suggests a characteristic or quality of the goods and services offered. It is a term which, although it does not explicitly indicate the nature of the goods or services, can nevertheless be associated with those goods through a fundamental relationship. The following brands in the technology sector are suggestive in nature: “The Law Firm” is a generic brand. It`s not descriptive or anything. It just says what it is. Generic names may NOT be trademarks. That`s why it`s in red. Arbitrary good notes have a loose relationship with suggestiveness, since a quality evoked by the name – the digestibility of milk, for example, or the directness of the religious society of friends – applies to the thing named. Connecting the dots often requires agile imagination and sophisticated writing skills.
In general, the more unique or distinctive the name, the greater the protection of the brand. Imaginative marks (invented words such as “Kodak”), arbitrary marks (existing words used in a manner unrelated to their normal meaning, such as “Apple” for computers) and suggestive marks (those that indicate a quality or aspect of the product or service, such as “Netscape”) enjoy the highest level of protection. You can register these types of trademarks instantly, without proof of “secondary meaning,” that is, proof that the public, through your use of the name in commerce, has specifically identified it with your good or service. Similarly, in the event of a prosecution, you would not need to provide evidence of secondary importance to recognize your case. Descriptivity sometimes plays a legitimate role in nomenclature. Some products – for example, medical and technical devices – are best served with descriptive names. Of course, the text of your product should be clear and descriptive. And often, a descriptive slogan provides clarity and balance to support a suggestive, arbitrary, or imaginative name.
In the context of benchmark “competitor requirements”, courts consider whether admitting a monopoly by means of a clause would cause unreasonable harm to competitors or to the market as a whole. For example, no computer company can protect the word “computer” as part of its specific trademark. This would force all competitors to come up with a new name for computers, and everyone in the public to learn this new term. This creates a competitive advantage that is not fair to anyone. On the other hand, there`s nothing stopping seven different people named Wyatt from opening retail stores called “Wyatt`s” — unless one of them becomes so popular that public perception identifies the name with retail sales. Why do many companies ignore the advice of trademark attorneys (and name consultants) and choose descriptive names? “Companies can choose a descriptive mark even if it is a weak mark, because there are marketing benefits to using a mark that describes the product,” explains the website with the descriptive name Trademark Registration. Fanciful, arbitrary or suggestive devices are considered distinctive enough to function as trademarks. On the other hand, if a device is descriptive, it can only function as a trademark or service mark if it has acquired secondary meaning. Generic devices can never be a brand.
When trying to choose the name of a company, you have to think a lot. You want to make sure it`s a good business name in your industry. You want to make sure it`s available. And while you probably don`t have to worry about brands at first, you want to set up your business for brand protection. A device (for example, a word or logo) can only be considered a trademark or service mark if it is distinctive. A distinctive feature is one that distinguishes the goods or services on which it is used from the goods or services of others. A non-distinctive device is a device that simply describes or designates a feature or property of the goods or services. The distinctiveness of a product can generally be divided into one of five categories that fall within a distinctiveness spectrum. From the most distinctive categories to the least distinctive, surnames can be a sensitive subject in trademark law. Very often, a surname can be treated as a descriptive mark until it acquires a secondary meaning.
However, once it has gained such importance, it is a very strong sign. Think McDonald`s Corporation. Originally a family name, it has now become synonymous with the company. This means that no one else can open a restaurant called “McDonald`s” – even if that`s their real last name. The brand is too solid. Having a descriptive business name isn`t always a bad thing. If it`s descriptive, your customers will better understand what you do. And since trademark protection is weaker for descriptive marks, you don`t have to worry as much about a competing company claiming trademark ownership over the name.
But beware: a descriptive name puts you at risk, and you should seek trademark protection if possible if you want to protect your brand in the long run. So think about this detection spectrum. Choose something suggestive. If it`s a generic, you`ll never get brand protection. If it`s descriptive, you`ll have an uphill battle to maintain brand status. And on the other hand, if it`s arbitrary or fanciful, you`ll have a hard time building an audience that understands what your business does. An imaginative trademark, on the other hand, is a mark that has no meaning other than a trademark. It`s a made-up name that represents nothing more than a business. Examples of imaginative brands include Xerox and Exxon. “Imagine Law” is suggestive. It doesn`t really describe the company. But if you know that our company helps creative businesses, then the word “imagine” makes sense.
It doesn`t tell you what we`re doing, but it gives you a glimpse of it. The “Culaccino law” is arbitrary. It translates to “watermark,” which has nothing to do with what my company does. But the word itself, or at least a translation of the word, exists. “Tribop” is imaginative. It`s a completely made-up word (at least the last time I checked). Tribop would be the strongest brand here, but ALL of these products would enjoy strong brand protection without having to worry about secondary meaning or anything. That`s why they`re green. Imaginative names are generally considered the easiest names to protect, but they are not shoo-ins. For example, if Zulily had had a competitor named Zuli – a hypothetical name coined – sailing wouldn`t have gone so well.
In fact, Zulily received the first of its brands in 2010. It is no coincidence that Zulily was appointed with the help of an experienced consultant (and linguist), The Name Inspector. Here, however, cases can get complicated. In other cases, the mark “Wite-Out” has also been considered suggestive rather than descriptive because the courts have not considered it to be manifestly linked to a corrective product taken alone. In contrast, the term “work and play” has been kept as descriptive as it has been applied to a van for business and recreational purposes. Again, we see the need for secondary meanings in many of these brands. Some of these brands have inherent and obvious differences. Others are distinguished by association. The public becomes so familiar with a company that even if its name has nothing to do with its products, it becomes synonymous with what it does. After all, a generic name can never benefit from trademark protection. A generic name is identical to the product or service to which it is linked. For example, if you call “email” a company that hosted email accounts, it would be a generic name.
Note that a term can be a generic name for one product or service, but a valid trademark for another. For example, “Apple” is a generic name for selling apples, but a valid brand for computers, and “bicycle” is a generic name for selling bicycles, but a valid brand for playing cards. Some geographical terms such as “Swiss cheese” and “French fries” are also generic as they are synonymous with the article itself. However, this does not mean that all geographical names are generic. Imaginative. If your company name is a made-up word, it`s fanciful. Choosing a suggestive business name is easier said than done. Especially when it comes to that blurred line between striking and suggestive marks.
If you need help deciding whether you want to call a distinctive or suggestive business name, let us know. We are happy to help. The Microsoft and Android trademarks do not directly indicate that they refer to computer or technological software, but the names themselves may have an association with imagination. Other suggestive brands on the market today include Playboy magazine, convenience store chain 7-Eleven (originally named for their hours), and car models like Jaguar or Mustang (so named for their speed and performance).