Updated: Dec 2, 2021
You might already know what a trademark is, but did you know there are different types of trademarks? And some offer more protection than others?
I'm going to break each type of trademark down a bit, explaining the type of intellectual property each one protects and how strong they are.
What is a Trademark?
A trademark is a great way to protect your brand.
5 Types of Trademarks
There are five primary types of trademarks. If you have a distinguishable aspect of your company, it's likely it can be trademarked. However, that decision is ultimately up to the courts.
While all trademarks carry the same TM symbol, they are not all treated equally. Some have little to no legal protection, while others are heavily protected. Here are the main types of trademarks!
Generic trademarks are rarely protected under the law. The USPTO usually doesn't approve generic marks and, if they did, it provides the least amount of protection.
What is a Generic Mark?
These are commonly used words that encompass a broader set of subcategories. If protected, they would hinder competing companies’ ability to convey their product. For example, if someone were granted the trademark rights to the word "rubber", companies that sell rubber products would have trouble describing their products without legally being able to use the word "rubber".
Additionally, several companies made products that were once protected by trademarks, but they became so popular that the names for them became used as an umbrella term for all similar products, too. When this happens, trademark protection is lost. These are known as genericized trademarks.
Trademark genericide is what happened with the “escalator”. Until the coining of the word, escalators were often referred to as inclined elevators or moving stairs. Otis, the company that popularized and owned the rights to “escalator”, made them better than anyone else at the time. They became so popular everyone began referring to all similar products as escalators, too. As a result, Otis lost their trademark in 1950, and the rest is history.
Gaining Protection for a Slogan
Slogans fall under this type of trademark even though they can potentially get protection by gaining a secondary meaning. A secondary meaning comes from being overwhelmingly recognizable. For example, “Just Do It”, “Eat Fresh”, and “Save Money, Live Better”. None of these slogans were trademarkable at first, but over time they became closely associated with their respective brands (Nike, Subway, and Walmart). Once that happened, they were able to be protected.
Like generic trademarks, descriptive trademarks are rarely granted protection under the law. This is because descriptive trademarks simply describe the product, such as “cold” soda or “salted” pretzels.
Similarly, surnames cannot be protected because they are considered descriptions, so you wouldn’t be able to trademark “Carter Used Cars” or “Smith Luxury Suits”... at first.
There is a way to obtain a protectable trademark for descriptive marks if they acquire a secondary meaning. This happens when something becomes increasingly popular and people associate the descriptive word to the source of the product being described.
Descriptive Trademark Examples
Two companies that were able to successfully obtain a protected descriptive trademark include McDonald’s and International Business Machines (IBM). Neither of these were able to be protected at first. Over time, many people began to associate cheeseburgers with McDonald's and computers with IBM. Because of this, a secondary meaning became associated with each name, allowing them to become legally protected.
We usually discourage this type of mark because it requires a lot of time, effort, and money to protect.
This type of trademark does not actually describe the product but suggests a characteristic. Because they tend to be unique, suggestive trademarks are often granted protection.
Suggestive Trademark Examples
Some examples include the car brand Jaguar and kitchen appliance company Kitchenaid:
Jaguar cars - Jaguars are fast and agile, so it's only fitting that a sports car company wants to associate their brand with them.
Kitchenaid - Kitchenaid wants to come across as a company that sells products to aid their consumers in the kitchen, hence the name of their brand
Arbitrary marks are words that already exist, but can easily gain protection because they aren’t likely to be confused with the original meaning of the words. This is because the trademark will be used in a different context than the original word.
Arbitrary trademarks are usually approved, and they offer a strong form of protection.
Arbitrary Trademark Example
An example of an arbitrary mark is Domino’s Pizza. If someone asked, “do you want Domino’s for dinner?”, almost no one would interpret that as them being asked if they want little game pieces for dinner.
This type of trademark is abundant. Some more examples include Apple (tech company), Amazon (eCommerce), and Dove (chocolate).
Fanciful trademarks have the most protection under the law. They are words that were non-existent before being trademarked.
In other words, they are made up to be the name of a company or product. Examples include Kodak (cameras), Exxon (petroleum), and Rolex (timepieces).
Need Help Determining the Right Trademark Protection?
Do you have an idea for a trademark, but still don’t know what type of trademark it is? Or maybe you just want some additional guidance with the trademark registration process.
Either way, we are here and would love to help. Contact us today so we can get you the protection you need.