Creating the Best Mark
WHAT CAN FUNCTION AS A TRADEMARK? A trademark may be defined as a word, term, name, symbol, device, picture, design, numeral, monogram, abbreviation, acronym, slogan, phrase, color (yellow for ironing board covers), a sound combination (the Avon doorbell, NBC chimes of yesteryear), label, container (the shape of the Coca Cola bottle), package, product shape (Goldfish crackers, LifeSaver candy), geographical name, grade designation, or any combination of these, as well as fragrances and number combinations like telephone numbers or domain names. Apart from generic terms, (defined below) trademarks can consist of almost any conceivable subject matter.
DISTINCTIVENESS AND TRADEMARKS: Not all marks qualify for legal protection in court or for trademark registration. Only those which are distinctive will be protected. Under the statutory definition of "trademark", the word, term, name, symbol or device must be used or intended to be used "to identify and distinguish" the goods of the trademark owner from those offered, manufactured, or sold by others, and the mark should indicate the source of the goods. The use must, above all else, distinguish.
DISTINCTIVENESS TRANSLATES INTO PROTECTION
Here is the equation:
the greater the distinctiveness = the greater the scope of protection
A distinctive mark will protect against use by others of the same or a confusingly similar mark on the same products, on related products, and even on those which may be considered by some to be unrelated but which the public is likely to assume originate from the trademark owner.
LEVELS OF PROTECTABILITY
Trademarks may be ranked in the following categories - 1 is the best, 4 is the worst:
1. ARBITRARY or FANCIFUL = highly protectable
2. SUGGESTIVE = protectable
3. MERELY DESCRIPTIVE = may be, or become, protectable trademark in certain circumstances
4. GENERIC = not protectable trademark