January 07, 2014

The Distinctiveness Spectrum: Fill 'er Up!

by Stites & Harbison, PLLC


Generally speaking, the strength of a mark (and whether it can be registered) depends on its distinctiveness, that is, how descriptive the mark is of the goods and services. The more descriptive, the weaker the mark. Folks that deal with trademarks regularly (and particularly the Patent Office, from whom I stole the following definitions) use the following spectrum to measure distinctiveness:

"Generic" marks are the weakest. They are terms the public understands as the common name for the goods or services.

Gasoline Distinctiveness Spectrum3

"Descriptive" marks describe an ingredient, quality, characteristic, function, feature, purpose or use of the specified goods or services.

"Suggestive" marks are terms that, when applied to the goods or services at issue, require imagination, thought or perception to reach a conclusion as to the nature of those goods or services.

"Arbitrary" marks are common words that do not suggest or describe a significant ingredient, quality or characteristic of the specific goods or services.

"Fanciful" marks are the strongest. They are terms that have been invented for the sole purpose of functioning as a trademark.

Because the concept of distinctiveness is somewhat counterintuitive, I periodically provide a reference chart of examples using familiar products and services. This time, it's gasoline.

Also, because the concept of distinctiveness can be rather bland, I am heating this post up with some additional "Gasolina."

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