Just like Steve Rogers through his transition to Captain America, trademarks vary in strength. Some are burly superheroes, and some are weaklings hiding behind their bigger friends for protection. What makes a mark strong versus weak? The level of which your mark describes the good or service that you are selling. There is a spectrum of strength.
Generic marks get no protection. Descriptive marks can earn some strength with enough time and effort. Suggestive marks have some protection built in, but not a wide swath. Arbitrary and fanciful marks are strong right out of the box.
For example, let’s sell a version of Captain America’s shield to the superheroes in need of some portable protection at an affordable price. We are selling a circular, metal shield painted in a vaguely U.S. patriotic themes but not exactly like Captain’s signature shield. Calling it “The Shield” is straightforward and easy to remember. It is also generic. It is the best, and maybe the only, way to say what it is that we are selling. We will not be able to protect that. Others could call their lesser quality shields the same thing, and we have no recourse.
How about “Vibranium Disc”? It isn’t necessarily generic, but it does describe our good pretty solidly. (The shield is made of a Vibranium alloy after all.) Therefore, we can’t stop others from getting awfully close to that name if it also aptly describes their product. Eventually, if we can prove that our customers do not see the term “Vibranium Disc” as a description of our product but as an indication of source, then we can claim secondary meaning and gain protection. But in the meantime, we are fighting with all the other shield manufacturers for recognition in the marketplace. Not the best way to go.
Let’s try “The Guardian.” It suggests what is going on, but it requires some amount of imagination, thought, or perception to reach a conclusion as to the nature of those goods or services. It is a suggestive mark, which doesn’t need to prove that a secondary meaning beyond the term itself to provide protection. That is the difference between a suggestive term and a descriptive term. The suggestive term needs the purchaser to make a jump from the name to the item being purchased, but a descriptive term immediately tells something about the goods or services. However, the scope of protection may still be a bit narrower as others may be able to use other marks invoking the same thoughts and feelings.
Now if we want immediate, broad protection, we can choose an arbitrary mark. That is a word in current usage that do not suggest or describe a significant ingredient, quality, or characteristic of the good. An option could be “Stagheart” or “Sabertooth.” Don’t believe me this works? Look at DIAL soap, APPLE computers, and MUSTANG cars.
If we don’t like any of these and have a creative bent, we can make up a word and make a fanciful mark. What if we called our line of shields “Vishlier”? It sounds gallant and maybe even exotic, and Google did not return any results of it existing prior to now. Granted, we will have to teach our customers what it is, but once they know, they will only think of us. No confusion happening on the shelves at the local Super Target for us!
The next time you are coming up with a new mark, be a trademark superhero. Be like Captain American and wield the ultimate in offense and defense in trademark weaponry with a strong mark!