Weak Trademarks
Unlike suggestive, arbitrary, and fanciful trademarks which can be considered strong, descriptive trademarks and merely descriptive trademarks are considered weak trademarks but can still be protected. Generic trademarks cannot be protected under trademark law. Generic trademarks are those that describe a product or category of goods or have suffered genericide.
A trademark can be one of the most valuable assets a company owns, therefore it is best to create the strongest possible trademark. A trademark that is unique and distinctive, for example, is considerably stronger than a trademark that tends to describe the goods or services at issue. For example, the words Furniture Store could not be protected for use in relation to the sale of furniture. While it is possible to register a weak trademark, it is not afforded as much legal protection from perceived infringers.
If you are starting a new business or considering launching a new product or service, you should consider the different types of trademarks. During this process business owners often tend to choose descriptive trademarks that may be helpful from a marketing perspective but that may be difficult to acquire or protect from a legal perspective. Rather than a descriptive or generic trademark, a suggestive trademark strikes the best balance between marketing and legal considerations.
For more information about registering a trademark, please see our trademark registration page.
Weak Trademark Examples
Generic trademarks are not capable of legal protection due to either being generic from the outset or to becoming generic over time. Descriptive trademarks generally fall into two categories, descriptive and merely descriptive.
Descriptive Trademarks
At times descriptive words can function to designate the source of goods or services and thus can be registered as a trademark. This type of trademarks can be registered to the supplemental register or to the principal register with a section 2(f) designation. For example, a furniture store named California Furniture Center would have limited trademark rights because the trademark describes the fact that the company is a center for selling furniture in California.
Merely Descriptive Trademarks
A merely descriptive trademark immediately conveys the quality, feature, function, or characteristic of an applicant’s goods or services. Words or phrases that describe the function, use or purpose of the product or service are difficult to protect as trademarks. However, it still may be possible to register these types of trademarks to the supplemental register or to the principal register with a section 2(f) designation. A descriptive trademark can become distinctive if a company has established exclusive use of the term over a period of time and consumers now associate the descriptive term with the particular company. For example, Raisin Bran took on secondary meaning over time as consumers differentiated the various cereals using raisins and bran from the specific cereal sold by Kellogg’s.
What is a Generic trademark?
A generic trademark is a term that is used to describe the type or category of goods or services at issue. Generic trademarks are not eligible for trademark protection because it would prevent other companies from fairly describing their goods or services. For example, if a company was permitted to register Furniture Store for the sale of furniture, all other furniture stores would have difficultly describing their business without committing trademark infringement.
What is Genericide?
Genericide is the process that occurs when a brand name loses its trademark protection due to becoming generic. During this process, consumers begin to use a trademark brand name to mean a type of thing rather than a brand of thing. For example, Aspirin, Thermos, Trampoline, and Videotape have all lost trademark protection due to becoming generic.
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If you are selecting a trademark and are concerned that it may lean toward the descriptive side, please feel free to contact us.
