Exploring the Strength of Different Types of Trademarks
In the realm of branding and marketing, the strength of a trademark is crucial in determining how well it can be protected legally. Understanding the hierarchy of trademark strength, from weakest to strongest, helps businesses make informed decisions when choosing a brand identity. Let’s delve into the different types of trademarks with additional examples and insights into their relative strength:
1. Generic Trademark
- Examples: “Instant Coffee” for a type of coffee, “Smartphone” for a mobile device.
- Strength and Legal Protection: Generic trademarks are the weakest. They are common terms used to describe a product or service and are not protectable under trademark law. Once a trademark becomes generic, it loses its distinctiveness and, subsequently, its protection.
2. Descriptive Trademark
- Examples: “British Airways” for an airline based in Britain, “Whole Foods” for a grocery store specializing in whole foods.
- Strength and Legal Protection: Descriptive trademarks are relatively weak in terms of legal protection. They can be protected only if they acquire a secondary meaning. This secondary meaning occurs when the public primarily associates the term with a particular product or service, rather than its general definition.
3. Suggestive Trademark
- Examples: “Greyhound” for bus services, suggesting speed; “Citibank” for banking services, suggesting a city-based bank.
- Strength and Legal Protection: Suggestive trademarks are stronger than descriptive ones. They imply a characteristic of the product or service but require some imagination to connect the trademark with the product. They are inherently distinctive and are protected under trademark law without the need to prove a secondary meaning.
4. Arbitrary Trademark
- Examples: “Amazon” for an online retailer, “Camel” for cigarettes.
- Strength and Legal Protection: Arbitrary trademarks are even stronger. They use common words in an unrelated context, making them highly distinctive. These trademarks are protectable under trademark law and are considered strong because of their inherent uniqueness and lack of relation to the product or service.
5. Fanciful Trademark
- Definition: Fanciful trademarks are made-up words or terms created specifically to serve as a trademark.
- Example: “Kodak” for cameras and photographic supplies.
- Legal Protection: These trademarks offer the strongest level of protection due to their unique nature.
Trademark Genericide
Trademark genericide occurs when a trademark becomes so common in everyday language that it loses its distinctiveness and legal protection as a brand. This phenomenon typically happens when a brand name becomes synonymous with the product or service it represents, leading the public to use the brand name as a generic term. Here are a few notable examples:
- Aspirin: Originally a trademark of Bayer AG, ‘Aspirin’ was the brand name for acetylsalicylic acid. However, over time, the term became widely used to refer to any brand of the medication, not just Bayer’s. As a result, ‘Aspirin’ lost its trademark status in many countries.
- Escalator: This term was originally a trademark of the Otis Elevator Company for their moving staircase product. However, it became so commonly used to refer to any brand of moving staircase that the trademark was eventually ruled generic and lost its protected status.
- Thermos: ‘Thermos’ was a trademark name for a vacuum flask brand. Over time, the term began to be used generically to refer to any vacuum flask, leading to the loss of its trademark protection.
- Xerox: ‘Xerox’ faced the risk of becoming a generic term due to its dominant position in the photocopying industry and the common use of the term ‘xerox’ as a verb meaning to photocopy. The company launched extensive campaigns to prevent ‘Xerox’ from becoming generic, emphasizing that it should be used as an adjective to describe products of the Xerox brand only.
- Google: ‘Google’ is an example of a brand that is constantly battling genericide. The verb ‘to google’ is commonly used to mean searching for information online, regardless of the search engine used. While ‘Google’ still retains its trademark status, the company remains vigilant to prevent the term from becoming generic.
These examples highlight the importance for companies to actively manage and protect their trademarks, ensuring that they don’t become so commonplace that they lose their distinctiveness and legal protection.
Conclusion
The strength of a trademark significantly impacts its protectability and effectiveness in identifying and distinguishing a brand. Generic trademarks offer no protection due to their commonality. Descriptive trademarks are protectable only after acquiring a secondary meaning. Suggestive trademarks, being more abstract, are inherently protectable. Arbitrary trademarks rank among the strongest due to their uniqueness and distinctiveness. When choosing a trademark, businesses should aim for marks that are inherently distinctive and capable of obtaining strong legal protection, ensuring a robust and defendable brand identity. For the best outcomes, consultation with legal experts in trademark law is recommended to navigate these nuances effectively.
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