Strong vs Weak Trademarks

Not all trademarks are created equal. When coming up with a trademark, understanding its strength can be pivotal to distinguishing your brand and ensuring it's legally protectable. Some trademarks are immediately registerable and distinctive, while others might be deemed too generic or too similar to existing trademarks in your industry. Selecting a trademark that is both unique and tailored to your niche is essential to building a strong brand.

Trademarks — from weakest to strongest

According to the United States Patent and Trademark Office (USPTO), trademarks can be categorized into five tiers based on their strength. The strength of a trademark determines how easily it can be protected under trademark law. Here is an overview of these categories to guide you in selecting an effective trademark for your business.

1. Generic trademarks (weakest)

Generic trademarks are the weakest form of trademarks. These are common words used to describe a product or service, such as "ice cream" for an ice cream shop or "cellphone" for a telecommunications company. Generic terms cannot be trademarked because they do nothing to distinguish your brand from others in the market.

2. Descriptive trademarks

Descriptive trademarks describe a product or service's function, quality, or characteristics. For example, "Cold and Creamy" for an ice cream brand describes its qualities but doesn't inherently differentiate it from other ice creams.

To be eligible for trademark protection, descriptive trademarks must acquire what is known as secondary meaning. This means that the public must come to associate the term specifically with your company rather than as a general description of the product.

3. Suggestive trademarks

Suggestive trademarks require some imagination or thought to connect the trademark to the product or service. For example, the popular streaming service Netflix combines "Net" (for the internet) and "Flicks" (for movies). The name hints at the nature of the service but doesn't explicitly describe it. Suggestive trademarks are inherently protectable and are stronger than descriptive trademarks.

4. Arbitrary trademarks

Arbitrary trademarks use common words in a way that has no direct relation to the product or service being offered. For instance, the word "Apple" cannot be trademarked for a fruit stand, but it functions as an arbitrary trademark for a computer company. Arbitrary trademarks are strong because they have no inherent connection to the goods or services they represent, making them distinctive and protectable.

5. Fanciful trademarks (strongest)

Fanciful trademarks are the strongest type of trademarks. These are entirely invented words or terms created specifically to function as trademarks. A classic example is "Kodak" for cameras. Fanciful trademarks are inherently distinctive, making them immediately eligible for trademark protection.

Start on the right footing — select a strong trademark

Selecting the right trademarkable elements is one of the most significant aspects of starting a new business. So understanding what makes these protectable is crucial. Start your trademark journey right, choose a strong trademark, and stand out from the competition. 

Additional resources

• How to Protect Your Small Business From Trademark Infringement
• What Are the Various USPTO Trademark Classes? (+ Making the Right Choice for Your Business)