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What makes descriptive trademarks weak?

On Behalf of | May 22, 2020 | Intellectual Property Law |

As someone who owns a business, you might consider registering a trademark with the federal government. You might even have a specific mark in mind, a descriptive mark that describes an aspect of the good or service you offer. However, choosing a descriptive trademark might not afford your business the protection it deserves.

Inc explains that the government actually will not protect descriptive trademarks unless they acquire a distinctive nature from other marks. So even if you register a descriptive mark, a court may not protect it from infringement from other parties.

Characteristics of strong trademarks

A distinctive trademark has a strong, unmistakable identification with the company who owns it. For instance, a fanciful trademark is a word or slogan that has no existing meaning with the public, so people are unlikely to confuse it for something else. Likewise, an arbitrary mark does have a commonly known meaning, but that meaning does not connect with the goods or services of the company the mark represents.

However, descriptive marks lack these distinctive qualities. They merely use words or designs to describe what a company is offering. While you might feel a descriptive mark is the best way to go since it tells the public what you provide, a court might find the mark too weak and will not protect it if you litigate another company for infringement.

Acquiring distinctiveness

If you do register a descriptive mark, you need the mark to acquire a distinctive nature through its use. If the public comes to identify your mark with your company, the government may protect your mark from infringement. However, acquiring distinctiveness may take time. You might need to use the trademark in the market for at least five years, if not longer, before the government will consider the mark distinctive.

A weak trademark can cost a company a lot of money. It may be of greater benefit to create a more distinctive mark from the start to avoid the long process of trying to make a weak trademark strong through continued use.