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  • Writer's pictureDenny Esford

Trademark Primer for Entrepreneurs

Trademarks are words, phrases, symbols or designs that identify the source of goods of one party from those of other parties. A service mark is the same as a trademark, except that service marks identify and distinguish the source of a service rather than goods.

For the entrepreneur, it is important to understand the basics of trademark law, lest you make a mistake in creating a brand that cannot be legally protected from being used by others, confusing your current and potential customers, and experiencing lost sales to a competitor with a similar name.

U.S. trademark law categorizes marks used to identify a business into five areas according to the strength of legal protections available from the name’s distinctiveness. The categories are generic, descriptive, suggestive, and arbitrary or fanciful.

Generic marks are common words used to describe a category of product or service rather than distinguish a single source of the product or service xenical orlistat 120mg. Examples include “Shredded Wheat” for breakfast cereal and “All News Channel” for television broadcasting. Generic marks can never be protected under trademark law.

As the next category suggests, descriptive marks identify what a business does by the descriptive nature of the words, symbols or designs used. “Car Freshener to identify an air deodorizer for cars and “Open MRI” for open-sided magnetic resonance imaging machines are examples of descriptive marks.

The descriptive category of marks is a potential minefield for the entrepreneur. The understandable first instinct for entrepreneurs is to adopt a mark that quickly and clearly identifies to their target market what it is they do or sell. However, the only way such a mark can receive any trademark protection at all is if, over a long period of time and/or extensive marketing and advertising, the average consumer comes to associate the descriptive mark as identifying your business as the sole provider of a product or service using that name. This doesn’t happen often, but if the descriptive name does acquire this “secondary meaning” in the marketplace, the mark is protectable under trademark law. Two well-known examples are Chap Stick® for lip balm and Bufferin® for buffered aspirin.

Suggestive marks, while arguably somewhat descriptive in nature, take mentally more effort to associate the words used with the product or service being offered. Citibank® for urban-based financial services and Coppertone® for tanning lotion are two examples. Suggestive marks are considered inherently distinctive and receive immediate trademark protection. An infringer of the mark generally carries a heavy burden to establish that the average consumer in the marketplace does not associate a suggestive mark with the service or business that is alleging infringement of the mark.

Arbitrary or fanciful marks receive the highest level of trademark protection. Both are considered inherently distinctive, receive immediate trademark protection and an alleged infringer cannot successfully challenge the distinctiveness of the mark. Arbitrary marks are intentionally associated with a product or service that is unrelated to the mark’s ordinary meaning. Arguably the most famous arbitrary mark in commerce today is Apple® for a company that sells computer products. Fanciful marks are completely made up by the business seeking to uniquely identify its product. Kodak®, for example, was a completely made-up word to identify camera products and accessories.

The bottom line for entrepreneurs looking to create a unique brand in the marketplace should be to first consider using an arbitrary or fanciful mark to identify the source of the product or service their business sells. Registration of the mark with the United States Patent and Trademark Office (USPTO) formally puts the world on notice of your mark and provides strong legal protections under federal law. Consulting an experienced trademark attorney is a good investment, especially if you plan to be in business with your trademark well into the future.

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