Can merely descriptive marks be registered?
As explained in Bitlaw’s legal analysis, merely descriptive trademarks cannot usually be registered, but suggestive marks can be. However, the difference between descriptive and suggestive marks is a subtle one.
How do you overcome a merely descriptive trademark?
To overcome a §2(e)(1) refusal (i.e., a descriptiveness refusal), a trademark applicant can either (1) submit arguments and evidence to show that the mark is distinct, (2) amend the application to seek registration on the Supplemental Register, or (3) demonstrate that the mark has acquired distinctiveness.
What is a descriptive mark definition?
Descriptive marks consist of words that are indicative of the characteristics or qualities related to the goods or services associated with the mark.
Can descriptive names be trademarked?
What to do? Knowing that even descriptive word marks can be protected and registered with the U.S. Patent and Trademark Office (“USPTO”) may help with the decision.
Why can’t a trademark be descriptive?
Descriptive marks are difficult to register as trademarks because they only describe the characteristics of the products or services that are being offered. It is better to use a mark that is suggestive, arbitrary or fanciful so that it can be registered.
How do you answer a merely descriptive refusal?
Top 4 Ways to Overcome a Descriptiveness Refusal
- Argue the mark is suggestive. It can be effective to argue that the mark does not directly describe the goods, but consumers would instead have to guess or infer the intended connected meaning.
- Argue the term has other more relevant meanings.
- Expert Affidavit.
- Disclaimer.
What is an example of a descriptive trademark?
An example of a merely descriptive mark would be COLD AND CREAMY for ice cream. Marks of this type are generally not granted trademark protection. Merely laudatory terms such as “best” or “quality” also are generally not registrable. In some jurisdictions, surnames are treated as descriptive marks.
How do you register a descriptive mark?
Descriptive marks can’t be registered, but they could still be the best choice for your business, especially if you have a low advertising budget. These words don’t function as a trademark, as they fully describe a product by identifying it. They are nouns pertaining to common language, so they can’t be registered.
How can a descriptive mark be registered?
A merely descriptive mark may be registered on the Supplemental Register or on the Principal Register if the applicant can demonstrate the mark has acquired distinctiveness or has developed secondary meaning.
Why are generic or descriptive names or words not given trademarks?
United States trademark law prevents trademark protection of generic terms because providing a generic term with trademark protection would be like granting a monopoly in the product.
Is it a good idea when creating a trademark to use something descriptive?
Descriptive names do not function as a trademark.
Thus, it is less likely that consumers will associate your business with your product when using a descriptive mark. If reputation and branding is a business most important asset, then having a mark that serves a source identifier is essential to a strong brand.
What is the most common reason that a trademark might be rejected?
Likelihood of confusion is the most common reason an application will be rejected by the USPTO. Essentially, if there is a high probability that the general public will confuse your trademark with someone else’s (already existing) trademark, your registration will not be granted. The two marks need not be identical.
Is Netflix a suggestive trademark?
Jaguar: Suggests cars that are very fast. Coppertone: Suggestive of the resulting skin color after using this tanning lotion. Microsoft: Suggests software for small computers. Netflix: The subscription service suggests movies (‘flicks’) that are ordered online.
Why is descriptive trademark is not eligible for registration?
Under the Trade Marks Act, 1999, descriptive marks are incapable of registration. However, an exception to this “absolute bar” is made for a descriptive mark which has acquired distinctiveness or a secondary meaning through use or is a well-known mark before the date of application for registration.
What are the 4 types of trademarks?
The 4 Categories of Trademarks
- Generic. A generic term is a common description that does not receive trademark protection.
- Descriptive.
- Suggestive.
- Arbitrary or Fanciful.
On what grounds can a trademark be refused?
A mark will be refused as deceptively misdescriptive if (1) the mark misdescribes an ingredient, quality, characteristic, function, feature, purpose or use of the specified goods or services; and (2) the misrepresentation conveyed by the mark is plausible.
What Cannot be used as a trademark?
However, you can’t trademark: Proper names or likenesses without consent from the person. Generic terms, phrases, or the like. Government symbols or insignia.
What makes a trademark weak?
Weak trademarks are hard to protect against competitors and often are not federally registrable. These include descriptive and generic trademarks. Descriptive trademarks merely describe some aspect of your goods or services without identifying or distinguishing the source of those goods or services.
Can a person obtain trademark rights on a suggestive mark?
Suggestive marks can be misconstrued as descriptive marks, which do not receive trademark protection unless the mark has acquired a secondary meaning.
What are 3 types of trademark?
Types of Trademark
- Product Mark. Product mark is a mark that is used on a good or on a product rather than on a service.
- Service Mark. Service mark is similar to the product mark but a service mark is used to represent a service rather than a product.
- Collective Mark.
- Certification Mark.
- Shape Mark.
- Pattern Mark.
- Sound Mark.
What are some 5 examples of trademarks?
Some other standard character format examples include:
- Under Armour®
- Twitter®
- It’s finger lickin’ good! ®
- Just do it®
- America runs on Dunkin’®
How often do trademarks get rejected?
by Brette Sember, J.D. If you’ve filed a trademark application, you’re probably excited to get started using your mark. But not so fast — according to the United States Patent and Trademark Office (USPTO), about 18% of applications are rejected.
Can you trademark a name already in use but not trademarked?
1. Can You File for a Trademark That Exists? Updated November 12, 2020: If you’re wondering, “can you trademark something that already exists,” the simple answer is “no.” Generally speaking, if somebody has used a trademark before you, you can’t register the trademark for yourself.
What is the weakest trademark?
Generic. Finally, a generic mark is the weakest form of a mark because it simply uses the word of the good or service as its trademark.
What makes a strong trademark name?
Strong trademarks are typically creative or unique, setting you apart from your competitors. These trademarks include fanciful, arbitrary, or suggestive trademarks. Fanciful trademarks are invented words. They only have meaning in relation to their goods or services.