Trademark Distinctiveness by Zainub @ LEXCLIQ

Trademarks serve four purposes in general:

(1) To differentiate between the goods or services provided by one seller and those sold by others.

(2) To denote that all trademarked products or services are supplied by a single, anonymous source.

(3) To mean that all trademarked goods are of equal quality.

(4) As a primary tool for marketing and advertisement

The Trademarks Act of 1999, which went into effect on September 15, 2003, is a statutory definition. “Trade mark” is described in Section 2 (1) (2b) as “a mark capable of being depicted graphically and capable of distinguishing one person’s products or services from those of others, and may include the shape of goods, their packaging, and combinations of colours.”

A trade mark is a visual symbol that is used in association with certain products or services to indicate a contractual relationship between the goods or services and the person who uses the mark.

In order to fall within the scope of the statutory definition, a trade mark must meet the following specific criteria:

  1. A mark must be a computer, a brand, a heading, a stamp, a ticket, a name, or an abbreviation of a name, signature, word, letter, or numeral type of a product.

2.It should be able to be graphically portrayed.

3.It should be able to differentiate one person’s products or services from those of others.

4.It should be applied to goods or services, or suggested to be applied to goods or services.

The idea of trademark distinctiveness is a key concept in trademark and service mark law. A trademark or service mark must “identify and differentiate” the related products or services in order to be qualified for federal trademark protection and registration at the United States Patent and Trademark Office (or “USPTO”).

When we talk about “distinctiveness,” we’re talking about a continuum that runs from very distinct to completely undetectable. The most distinctive trademarks are those that are arbitrary (random) or fanciful (made-up words).

Arbitrary – A typical example of an arbitrary trademark is “Apple” (for computers and now many other things). While “Apple” is a popular term, its use in conjunction with a computer business is completely unexpected. Arbitrary trademarks include “Grey Goose” (vodka), “Comet” (cleaning solution), “Subway” (restaurants), and “Target” (retail shopping centres).

Fanciful –  Examples of fanciful trademarks include “Keurig” (coffee brewers), “Nikon” (electronic equipment), and “Zappos” (shoes).

Suggestive marks are the next level down on the distinctiveness scale. As you would expect, these allude to the products or services for which the trademark is registered. These trademarks are also different, and they will refer to some aspect of the product’s quality or function, but they will not specifically identify it. “Greyhound” is a bus company, “Mustang” is a vehicle company, and “Coppertone” is a tanning company.

Descriptive trademarks are a step further down, and they cross a major line because they are not intrinsically distinctive. They may develop distinctiveness, but they are not immediately protectable as trademarks. These trademarks are used to describe a function, nature, or intent of the products or services.

All descriptive trademarks include “Best Buy” (retail stores), “Bank of America” (banks), and “Brooklyn Brewery” (brewery and beer). To be specific, all of the trademarks I’ve mentioned are legitimate and enforceable because these businesses have gained distinctiveness in their respective marks. Initially, however, they were not enforceable trademarks. It’s also worth noting that surnames  can sometimes be considered “descriptive.” In addition, any laudatory terms like “best,” “super,” and “prime” are also considered descriptive.

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