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Intersections Newsletter
Articles about art, science, law, and the connections between them
When Marcom and Trademark Law Collide (cont'd)
 

Descriptive marks immediately convey the nature of the goods or services. For example, take PERFUMED SOAP as a mark for a perfumed soap product. You may eventually gain trademark protection for descriptive marks if you can show the public has made a strong association between the mark and your company's product or service. After 5 years of continuous use, there's a presumption in the U.S. that you've created such an association.

Imagination and Fancy

Suggestive marks, in contrast, require a leap of imagination to connect to a company's product or service. These are protectable upon use in commerce. But beware, one person's leap of imagination is another person's descriptive mark. There's not always a bright line between them. ORANGE CRUSH is an example of a suggestive mark.

 

 

 

 

 

 
A disclaimer: Although this newsletter may provide commentary on legal matters, it is not intended to serve as a legal opinion for the reader's particular issues. It should not be substituted for legal advice. More information.
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U.S. Federal Registrations: Why You Want That ®
If you use a mark in commerce, you have trademark rights whether you have a federal registration or not. But there are some advantages to a federal registration.

Some big ones:
• There's the legal presumption you own the mark
• You can reserve rights to a mark before you start using it, so long as you genuinely intend to use the mark in commerce (and eventually you do have to show use)
• The filing date of your trademark application can be used to show a date of first use
• You get the exclusive right to use the mark on or in connection with the goods or services described in the registration
• You get nationwide ownership rights vs. rights just in the geographic area where you're doing business

fanciful trademarks
Arbitrary and fanciful marks are the strongest marks. Arbitrary marks may stand for something, but you'd ordinarily never connect them to the products or services they're marking. For example, there's the APPLE mark for computers made by Apple. Fanciful marks are completely made-up. XEROX is an example of a fanciful mark.