What Makes a Trademark “Distinctive” and Why Does That Matter?

When a trademark is capable of distinguishing a company’s goods or services from those of competitors, it’s said to be distinctive. There are many levels of distinctiveness, and distinctiveness will dictate a trademark’s continuing validity and enforceability after registration is complete. Highly distinctive brand identifiers are considered strong trademarks, and this will typically result in the registration process going much smoother. Unauthorized use will also be easier to identify and respond to. Trademark distinctiveness is not something most applying for trademarks consider. Apart from the likelihood of confusion issues, however, the level of trademark distinctiveness will likely be key to whether a trademark application will be approved. In 1976, a federal appeals court decided an infringement case that established the concept of a trademark spectrum of distinctiveness. Sometimes also referred to as “Abercrombie factors” or “Abercrombie classifications,” these classes distinguish the strength of a given brand identifier and thus the level of protection it receives under the law.

There are various ways you can ensure your trademark is distinctive from others:

• Create a unique term or design: Completely novel identifiers are the strongest trademarks. No other brand could ever claim, for instance, that their commercial use of “Kodak®” isn’t infringing.

• Choose an unused identifier: Even if a trademark isn’t inherently strong, continued and exclusive use can make it distinctive. If your identifier can’t be original, at least make it uncommon.

• Avoid potential confusion: Even if your brand name is original, it may not be considered distinctive if it could easily be confused with a preexisting registration.

• Avoid descriptive terms: It is very difficult to establish rights over any descriptive identifier.

• Don’t use generic terms: Generic trademarks can never be considered distinctive. You’ll garner no federal rights over these identifiers.

• Don’t use surnames: Surnames are not considered distinctive on their own.

• Avoid numbers and acronyms: It can be difficult to prove that identifiers containing numbers or acronyms are distinctive. Focus more on choosing a truly unique trademark.

Visit https://jayaramlaw.com/how-to-prove-that-your-trademark-is-distinctive/ to Schedule a consultation today.