You’ve come up with an idea for your business – you’ll teach cats how to swing dance! You’ve put together your dance track, gotten your scratch-proof body suit, and lined up your graphic designer for your marketing materials. Then a question from the designer stops you cold: “What’s the name of your company?”
Choosing a company name, or any branding that could serve as a trademark, can be quite tricky. Coming up with ideas isn’t terribly difficult (for some), but often the low-hanging fruit is already taken. On top of that, many people don’t realize that not all trademarks are created equal. Some get more protection than others.
The powers that be in the trademark world have divided trademarks into four categories, each with different levels of protection. From least protected to most protected, they are:
- Generic. These marks get no protection whatsoever. They use a product’s name, or some other broad term which does nothing to distinguish the mark from competitors who sell the same product. “Dance” will not get you very far with the Patent and Trademark Office.
- Descriptive. A descriptive mark, as the name suggests, describes the services or goods the mark owner sells. These marks might get some protection, if you can show that it’s acquired “secondary meaning.” That means that you’ve used the mark long enough and extensively enough that people think of you when they hear it. So “Cat Dance Lessons” will not impress the Patent and Trademark office, but they may accept it if you’ve used it long enough.
- Suggestive. Suggestive marks are similar to descriptive marks; the difference is that a little thought is required to figure out what is being sold. The distinction is fine enough that a trademark examiner can sometimes be persuaded that a mark that was dismissed as descriptive is actually suggestive. A suggestive mark can be registered without having to prove secondary meaning, so you may have a shot with “Cats Can Dance!”
- Arbitrary/Fanciful. These are sometimes broken into two categories, with fanciful being a little stronger than arbitrary. Either one can be registered without difficulty, as long as it hasn’t already been taken. Arbitrary marks use an existing word that has nothing to do with the product or service, like “Tuna!” Fanciful marks are completely made up words that never existed before someone started using them – for example, “Catance!” (Yeah, there’s a reason I register trademarks and don’t create them).
Whenever possible, you want to use a mark that’s arbitrary or fanciful. In addition to an easier application process with the Patent and Trademark Office, it will also get more protection if you ever have to sue someone for trademark infringement.
If you would like to learn more – about types of trademarks, not cat dance lessons – you can email me at kaway@kawaylaw.com.