The Top 3 Types of Trademarks (not all are created equal)

Did you know that there are five different types of trademarks? That’s right, not all trademarks are created equal.

Some are easier to register while others will cost you less to educate your customers about. And still others are not capable of registration at all.

Picking the correct trademark for your brand is incredibly important. And if you pick the wrong name or type of trademark, then you could be costing yourself and your business a great deal of wasted time and money in the long run. This podcast episode will help to educate you on the best types of trademarks to use when you are just starting your online business.

A lot of people think that they can pick any old name for their business, and assuming that nobody else is using that name, then they can file their application with the trademark office and in a couple of months, they will get their registration…

How hard can it be?

Well, it is harder than you think.

You want to create a trademark that is strong – meaning that it is inherently distinctive.

An inherently distinctive trademark will quickly and clearly identifies your business or brand (and no other brand) as the source of the goods and/or services that your business sells.

The stronger your trademark is, the more easily you can prevent others from using it without your permission.

On the other hand, weak trademarks can be difficult and costly for you to defend because they don’t have the same legal protections as stronger trademarks.

So no… all trademarks are not created the same.

Which begs the question…

What are strong trademarks vs weak or unacceptable trademarks?

There are 5 main categories of trademarks:

  • Fanciful
  • Arbitrary
  • Suggestive
  • Descriptive
  • Generic

The 3 Best Types of Trademarks

Fanciful, arbitrary and suggestive trademarks are the best types of names to choose when you are thinking about registering your trademarks with the USPTO. Here is a quick rundown of each.

Fanciful Trademarks

These are are invented words. They only have meaning in relation to their goods or services. For example, Exxon® for petroleum or Pepsi® for soft drinks.

Arbitrary Trademarks

These are actual words that have no association with the underlying goods or services. Think of the term “apple.” If an apple orchard or apple stand tried to register the word “apple” as a trademark for the type of apples they grow, that trademark wouldn’t be registrable. But, everyone’s favorite computer company, Apple®, has been registered as a trademark for selling computers. This is because Apple® for computers is unique.

Suggestive Trademarks

Suggestive trademarks are words that suggest some quality of the goods or services, but don’t state that quality of the goods or services outright. Consider Coppertone® for sun-tanning products or Greyhound® for transportation. The trademark gives the impression that using Coppertone® suntan oil will make your skin shimmer like copper, or that the Greyhound busses will get you to your destination fast.

For the record, I'm not endorsing using a product like Coppertone®, too much sun will cause skin cancer you know…


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The Biggest Takeaways

  1. While strong trademarks, fanciful and arbitrary names require a larger up front investment to educate the public about your brand and what your company does.
  2. Suggestive marks are easier to educate your potential customers about, but you run a higher risk that the USPTO will make a “merely descriptive” refusal and ask you to amend to the supplemental register.
  3. Generic marks are not capable of registration.
  4. If you are asked to amend to the supplemental register, all is not lost. You can reapply to the principal register after 5 years once your brand has acquired distinctiveness in the marketplace.

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The content of this podcast episode is provided for informational purposes only and is not intended to constitute legal advice. You should not rely upon any information contained on this podcast episode for legal advice. Listening to The Legal Jim Podcast is not intended to and shall not create an attorney-client relationship between you and James W. Hart or The Hart Law Firm, P.A. d/b/a Hawthorn Law. Messages or other forms of communication that you transmit to this website will not create an attorney-client relationship and thus information contained in such communications may not be protected as privileged. Neither James W. Hart nor The Hart Law Firm, P.A. makes any representation, warranty, or guarantee about the accuracy of the information contained in this podcast episode or in links to other podcasts, resources or websites. This podcast is provided “as is,” does not represent that any particular outcome will result from listening to this episode. Your use listening to this podcast is at your own risk. You enjoy this podcast episode and its contents only for personal, non-commercial purposes. Neither James W. Hart, The Hart Law Firm, P.A., nor anyone acting on their behalf, will be liable under any circumstances for damages of any kind.

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