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Are all Trademarks Created Equally?

The answer is “no”. The protection afforded a particular trademark depends in large part on how descriptive the trademark is of the particular product or service provided in association with the trademark. For example, if the product is apples, the trademark “APPLE” would be deemed “generic,” and would not be protectable at all. Similarly, the trademark “RED” would be deemed “descriptive,” and would also not be protectable. The trademark “DEVIL’S FRUIT,” however, would be “suggestive,” and would, therefore be protectable. You do not know what the product is from the name, but after you hear the product, the trademark makes perfect sense. The trademark “ROYAL” would be “arbitrary,” the mark “QWIPPLE” would be “fanciful,” and both would be protectable. The question to ask is “would a competitior likely use the word in their marketing of the product? If so, the trademark is likely protectable, if not, then the trademark is likely not protectable.

Descriptive trademarks fall into two categories–the descriptive and the merely descriptive. Descriptive trademarks, while often not registerable in and of themselves, may be registerable if the owner can demonstrate that consumers have attached a “secondary meaning” to the trademark. Secondary meaning attaches when, in the minds of consumers, the trademark is associated more with the particular product than with the word’s ordinary meaning. If a trademark is determined to be “merely” descriptive, however, the trademark is not protectable. The courts have determined that in such cases the descriptive nature of the trademark is such that no amount of advertising or sales would be sufficient to override the consuming public’s descriptive association with the trademark. Tomorrow . . . Beyond Mere Words.

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