It’s Time to Own Your Brand
You may already know about the three types of intellectual property: patents, trademarks, and copyright. In this article, we’ll dive deeper into one of these intellectual property rights—trademarks.
What are trademarks? And why is it important to have one for your brand or business? Before we discuss a trademark and its four categories, first I want you to understand what it means to own your brand.
Timing is everything. While I know that there’s a time for messy action (we’ve all been there) I want to get serious about you having the authority to own your brand. Now, what does that mean?
Owning your brand means that you’re taking ownership of your intellectual property rights. If you have a business that has an identity of some kind then you already have a brand.. Whether it’s for this brand, a future rebrand, or an entirely new business idea, you must understand your intellectual property rights and how to own them (in every sense of the phrase.)
As I’ve mentioned above, we’ll be focusing on trademarks on this blog. I’ll discuss the things that make a trademark strong, by diving into the four types of trademarks.
A trademark has four types: fanciful or arbitrary marks, suggestive marks, descriptive marks, and generic marks. Among the four, fanciful or arbitrary marks are the strongest, while generic marks can actually not be registered at all. It’s because there’s really no offer for protection for something that is in fact generic.
It’s important to tackle the four types of trademarks one by one because suggestive and descriptive marks may fall in between the two other categories. Most importantly, I want you to understand how this information will empower you to design your brand, so that it provides you the strongest possible protection — a federally registered trademark.
Generic marks are marks that use common everyday terms that everybody has and should have a right to use. For example, we really can’t trademark “legal services” because that’s a generic term to describe a whole class of services. Also, it would be unfair to prevent other people from using that term in the sale or promotion of legal services.
So, if you have a mark that relies on generic terms, know that it needs to be part of a bigger mark because you’re likely going to have to disclaim the generic words out of your trademark. For example, I had an incredible client who trademarked a particular product within coffee. Guess what? They can’t have trademark ownership to the word “coffee” — everyone in that category has to disclaim the use of the word “coffee.” This is just one good example, so keep it in mind as it may apply to your brand industry.
A descriptive mark uses terms that describe the good or service. It might use something that’s going to evoke the color, smell, or ingredients of the goods and services.
For example, the word “soft” might be used to describe toilet paper. But you can’t necessarily rely on the word “soft” as your entire brand name in the class of toilet paper. A mark that’s only descriptive can’t be registered unless it has distinctiveness. So, in this case, you’d have to prove that your mark has been highly used in commerce for at least five years before it will acquire any type of distinctiveness.
Another example is UPS having a trademark for their signature brown. Much like the word “soft,” you cannot trademark a color unless it’s earned (and can prove) it’s the distinctiveness that it has acquired over its use. That particular color evokes an identity. When we see that color, we now think of UPS because it was extensively used, and it had become a trigger in our minds for that brand. That type of effective branding is what we all strive for.
To marketing professionals, this is where you come in. If you like to use descriptive marks because it feels easy for the consumers to identify one of the main attributes of a good or service, that’s great! But I want you to take a moment and resist the urge just a little bit because it’s weak. It will need a great deal of time, effort, and money to acquire the distinctiveness that your brand needs to own your brand. It’s also going to be hard to advocate and enforce to gain distinctiveness and protect your trademark in the long term.
Suggestive marks play into the qualities or attributes of a good or service. Now, you might confuse this type of trademark with descriptive marks. Unlike a descriptive mark that utilizes color, smell, and ingredients, suggestive marks are actually talking about the qualities or attributes of a good or service.
Two of the best examples of suggestive marks are Airbus for airplanes and Netflix for streaming movies.
The movie streaming platform merges the online presence and flicks movies together, making it a suggestive mark. Meanwhile, Airbus for airplanes is a suggestive mark because it’s actually putting in your mind the concept of a bus in the air, which is what an airplane actually is (mind blowing when you think about it right?!)
Suggestive marks are strong marks, and they’re the second-best choice next to the arbitrary or fanciful marks.
As mentioned above, an arbitrary or fanciful mark is the strongest type of trademark and is afforded all protections. It’s either made-up words or real words that have absolutely no relation to the goods or services that we’ve talked about in the previous sections.
Because arbitrary or fanciful marks are often made up, it’s less likely that anyone is using them to describe a particular good or service.
The best example of an arbitrary trademark is the Apple company. None of us before Steve Jobs ever related an apple to computers and phones — that wasn’t something that we thought went hand in hand, but yet it worked.
These days, it’s so unique when we say Apple, and I bet the first thing we think about is our phones before the actual food itself. However, if we’re going to tie these trademark types into a pretty little bow, if we used “Apple” (alone with no further distinctive elements) as a brand for apples it would now be generic and therefore not worthy of trademark.
The best example of a fanciful mark is “Google”. The word did not exist before the company branded it, yet now it’s a verb.
The four categories of trademarks can be classified as weak or strong. The Generic and descriptive marks are generally considered weak, while the suggestive and arbitrary or fanciful marks are strong trademarks for your brand.
I hope you now realize how aligning your brand with a strong type of mark for its brand identity is going to help you own your brand. As you consider filing a trademark (if you don’t have a federally registered trademark yet), I want you to think about the parts of your existing brand (or the vision for your new brand) that aren’t generic or descriptive.
Instead, think of the parts that stand out and evoke attributes of your brand—the ones that are distinct and unique and therefore fall into suggestive, arbitrary, or fanciful marks.
Now, you might say that arbitrary or fanciful marks don’t work for your brand name. Well, that’s perfectly okay because you can still own your brand by trademarking far more than just your brand name.
You can trademark a slogan, collections of your products, or your online course that has a different name than your brand name. You can also trademark your logo. However, when you trademark an image, you must know that you have to use it in that form—the form that it was originally registered to.
So, if you’re considering doing a rebrand of your logo and your brand name alone is not distinctive, now is not the time to file a stylized mark. Instead, wait until you have the updated logo, especially if you want to continue using it in the next season of your business. A unique logo is an excellent way to create more distinctiveness and protection for a generic or descriptive mark.