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Trademarking

In order for a mark to receive a high level of trademark protection, there is a requirement that it be distinctive. There are four categories that a mark can fall into that determine if it is distinctive and just what level of protection it will be afforded under the trademark laws. This category system is based on the relationship between the mark and what it represents. Arbitrary marks are those with no rational connection to the product. The term "Sony" has no logical relationship to televisions or video game systems, for example. Arbitrary marks are very distinct and receive a greater level of protection. Suggestive marks are related to the product they are associated with, but are not actual descriptions of them. Protection is still high there. Descriptive marks describe something about the product and require secondary meaning to be distinctive, which would show the public associating the mark with the manufacturer of the product and not the product itself. Generic marks are too broad and are afforded no protection under the law. These marks are too closely identifiable with the product; for example, the Calculator brand selling calculators.

Fast Facts

  • Secondary meaning for descriptive marks can be attained by assessing advertising, longevity of the mark, sales volume and consumer opinion.
  • Even generic terms can be protected as time passes through a process of genericity.

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