What is a Trademark?
A trademark is a brand that answers the question, “Where did this product or service come from?” It’s a short cut for the consumer.
David Malick, an attorney with Richardson Clement, PC says we use trademarks all the time in everyday conversation. “Let’s say we’re going on a date together,” Malick says, “We have to decide should we go in my Toyota or your GMC truck? Where should we eat? Should we go to Macaroni Grill or to Mc Donald’s? Those are all trademarks.” The strength or weakness of a trademark will have a direct bearing on its performance in the market. In fact, consumers often make their purchasing decisions on the basis of a recognizable trademark.
Not All Trademarks are Created Equally
Malick says not all trademarks are the same. There are four types of trademarks.
- Fanciful Marks
- Arbitrary Marks
- Suggestive Marks
- Descriptive Marks
A fanciful mark would be using a word like, “Polaroid” or “Xerox”. Malick says, “The words alone don’t mean anything but you use the words to connect with a product.” Since these are invented words, they generally are afforded the broadest scope of protection against third- party use.
An arbitrary mark has words that have common meaning, but are used to describe a product. For example: APPLE. Apple is known as a fruit but also as a highly successful brand. Words that are trademarked can be used by more than one group of people, there’s no monopoly on the word, however, the word does have a kind of monopoly in the realm it’s used. There is an Apple Record company (founded by the Beatles), but another computer company would not be able to use the name “Apple”.
A suggestive mark “suggests” what it provides. Coppertone suggests a certain kind of tan. AIRBUS describes the type of airplane. Suggestive marks can possess an inherent element of sales appeal.
A descriptive mark is hard to get registered because it describes an attribute of the product. A “lawn mower” is used for mowing grass. “Cold and creamy” describes ice cream, but would not likely be registered. On the other hand, “American Airlines” describes an airline that’s in the United States, but because it has a particular meaning to consumers it can be trademarked.
Choosing a Trademark
So what is the best way to choose a trademark? Malick suggests, “The thing to think about as you put together your trademark, can I come up with a fanciful mark or an arbitrary mark so the consumer has a good shortcut to my product?” Ideally when choosing a new trademark it should be unique and it should help accomplish the goal of informing people about the brand.