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Considerations When Selecting A Brand
Starting a new company or launching a new product or service is an exciting endeavor, but choosing the right brand name is critical to its success. When choosing a brand name, it is important to consider whether the name would be granted trademark protection, and if so, whether the trademark would be considered “strong.”
What is a Trademark?
A trademark is a word, phrase, symbol or design (or a combination of those things) that identifies and distinguishes the source and quality of certain goods or services from those of others.
When is Trademark Protection Granted?
Trademark protection can be granted to the words in a brand name, as well as how they appear (color, font, etc.), if the brand name (1) distinguishes the goods or services, (2) identifies the source of the goods or services, and (3) is used in commerce for the sale of specific goods or services. Once your trademark is registered, there are some trademark rights available under common law. However, registering the trademark with the United States Patent and Trademark Office (“USPTO”) provides additional protection and notifies the public that the mark represents the brand.
How to Select a “Strong” Trademark
When selecting a “strong” trademark, businesses should aim for a name that is distinctive, memorable, and stands out from competitors.
Examples of weak trademarks include:
- Generic marks. These marks use words that are typical names for a product or service (ex. Grocery Store) and are not trademarkable.
- Descriptive marks. These marks use common terms to describe a characteristic of the product or service (ex. New York Pizza) and are weak marks.
- Personal names. Using your own name may seem distinctive, but it can be difficult to trademark. The USPTO believes it is bad public policy to allow one person to have the right to use a name that many others in the population may have. However, there are exceptions to this rule.
Strong trademarks include:
- Suggestive mark. These marks suggest certain qualities of the product or service and require imagination to make the connection (ex. Netflix).
- Arbitrary marks. These marks use a real word or phrase and apply it to an unrelated product or service (ex. Apple for computers).
- Fanciful marks. These marks are made up words and phrases (ex. Adidas).
Conclusion
It is important to consult an attorney early in the process of choosing a brand name to avoid costly mistakes and ensure that the chosen name is eligible for trademark protection. Waiting until a specific name is already in use can result in spending money to promote a name that has little or no legal protection, and can even incur legal fees and damages for trademark infringement.
