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What Can be Registered?

Not every brand name can be registered. To be registrable, the proposed trademark (for goods) or service mark (for services) must not be substantially similar to a previously registered mark, and not likely to cause confusion with a previously registered mark. There are five categories of trademarks:

  • Fanciful marks are "coined" (made-up) words or terms that have been invented and do not have a dictionary meaning, such as KODAK for film, POLAROID for cameras or EXXON for gasoline.

  • Arbitrary marks are commonplace words, terms or symbols that do not describe the product or service they are associated with: APPLE or SUN for computers.

  • Suggestive marks are familiar words or phrases that are used in an inventive way to "suggest" what their product or service really consists of: MICROSOFT for software for microcomputers, GREYHOUND for bus service.

  • Descriptive marks describe the product, service or contents of the product: COMPUTERLAND for a computer store, PARK-N-FLY for offsite airport parking lot.

  • Generic marks are names of the product or service itself, and these terms cannot function as trademarks; such terms include Aspirin, Consumer Electronics Monthly as a title of a magazine and Pocket Book for paperback books.

Descriptive and generic marks are not registrable because they are “merely descriptive” of the goods or services, and it’s not fair to give one company the exclusive rights to a word that would be commonly used by all competitors to describe an inherent aspect of the good or service. If you already have adopted a trademark that is not registrable, there may be some lesser protections we can obtain to provide some protection.

It is often difficult to determine what is “merely descriptive” and what is suggestive. For this reason, I recommend trying to coin a new term or adopt an arbitrary word. Think about your hobbies, favorite vacation places, anagrams made of your children’s names, your first dog, etc.

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