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Spectrum of Trademark Distinctiveness

Registration of a trademark becomes a bit challenging in a competitive market space. The major criteria for successful registration of a trademark is "distinctiveness". The trademark that represents your business entity need to be distinctive from other marks already existing in the market in order to avoid any confusion in the minds of an ordinary consumer. The following is the different types of marks categorized according to the parameter of protect-ability:

  1. Generic Marks: Generic marks are those marks which consist of generic or commonly used words. These types of marks are extremely hard to protect as it may easily create confusion in the mind of a consumer as well as prevent other business entities from using the generic term, if registered. For example, the marks "bike", "accounting firm", "noodles" is extremely generic and cannot be registered as a trademark. However certain trademarks, over a period of time, may become generic terms because of its popularity or significance and may be used as a synonym with its similar class of goods and services. Certain illustrations include Xerox, Band-Aid, Escalator which are the names of a brand and not the product.

  2. Descriptive Marks: Descriptive marks describe your product or service. Mere descriptive terms that illustrate the characteristics of your product or service may not be protected as a valid trademark. The description may be of the quality, quantity or the kind of goods and services dealt by the entity. For instance, "Cold and Creamy" for Ice Cream, "Digital" for Computers and "Clean It" for detergents are descriptive in nature and may not be protected. However, "Sharp" and "Windows" are the examples of descriptive trademarks that have acquired secondary meaning.

  3. Suggestive Marks: Suggestive marks make a suggestion about the quality or the kind of product or service the entity deals with. Even though suggestive marks are not as easily protect-able as that of arbitrary or fanciful marks, it may be registered as a valid trademark due to the lack of latent depiction unlike descriptive marks. Suggestive marks create room for imagination or thought in the minds of consumers. For example, "Burger King" is suggestive of good quality burgers, "Microsoft" is suggestive of software for microcomputers.

  4. Arbitrary Marks: An Arbitrary mark has no connection with the product or service of a business entity. Even though the term already exists and is commonly used, the entity using the mark is not attached to the term. For instance, "Apple" is an arbitrary trademark. Apple Inc. sells gadgets and not fruits, but the brand does not refer to the common name of a fruit. Similarly, "Dove" that sells personal care products has no connection to the dove bird and hence arbitrary. The registration of such arbitrary marks are extremely easy.

  5. Fanciful Marks: Fanciful marks enjoy the highest form of protection and obtain registration easily. These marks are made-up terms, are uncommon in usage and have no meaning. They are generally coined for the purpose of promoting the company and for the sole purpose of obtaining trademark. The marks "Kodak", "Exxon", "Polaroid" are the examples of fanciful marks.

These are the various types of marks with regard to the level of protection a trademark may get and is called the "spectrum of distinctiveness". Every other trademark can be categorized under this spectrum. This acts as a parameter for any entity to choose their trademarks for registration.

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