What are Fanciful Trademarks and How Do They Work?
Fanciful trademarks can be made up terms that are only intended to function as trademark Search. They could be neologisms, which are words that do not mean anything in English, or archaic terms that are not commonly used.
Fanciful trademarks are distinctive and can only be used to refer to a particular product. Fanciful trademarks are therefore the strongest.
Exxon and Clorox are some of the most famous examples of fanciful trademarks.
Understanding the Strength of Trademarks
A term is a trademark, and it only gets protection if it’s unique. Public must be able to identify the trademark associated with your product from those of your competitors. A mark can be classified into five types. These categories range from the most distinct (and strongest) to those that are the least distinguishable.
• Fascinating marks
• Arbitrary marks
Arbitrary marks can be real words that have a meaning other than the product being sold. The Apple trademark is an example. It is a type or fruit and cannot be used in association with the agricultural sector. It can, however, be registered as a trademark in association to the computer sector.
• Suggestion marks
A suggestive mark refers to an allusive word or phrase that indicates a particular characteristic of the product/service being sold. Because the consumer must use some imagination to identify the product, suggestive marks can be different than descriptive ones. Microsoft (software for microcomputers), Citibank, financial services, and Jaguar (cars) are examples of suggestive marks.
• Descriptive marks
Descriptive marks are words used to describe the product that they are associated with. Descriptive marks cannot be considered trademarks because a customer is unable to identify the product associated with them. They are not eligible for protection unless they attain secondary meaning. This can take a while, if at all. “104 Key” and “deep bowl” are two examples of descriptive marks. Computer keyboards have 104 keys.
The United States trademark law treats surnames as descriptive marks. If the public can’t identify the trademark with a product, or service, a trademark is “primarily a surname”. If a surname is used as a mark, it doesn’t have protection. The trademark is protected in this instance and cannot be used for any other product. The surname McDonald is an example. Bob MacDonald, a man of the surname “McDonald”, couldn’t open a restaurant calling it McDonald’s. “McDonald’s”, however, has acquired secondary meanings and is a protected trademark.
• Generic marks
Generic marks are words used to identify a product. Generic words can’t be trademarked. In fact, the federal government has ruled that no one can own exclusive rights to common words.
When Fanciful Trademarks Are Generic
Although they are often the strongest trademarks, they can sometimes become generic after many years. This is called ” genericity”. A word that was once unique in trademark usage has now become so common that it’s used for generic products that are not the original.
Genericity can be seen in the names “Aspirin”, “Linoleum” and “Elevator”. Google’s trademark could also be genericized soon as people often use “to google” to search the internet, regardless of which search engine it is.
How to choose the right trademark
Your trademark could be your most valuable asset. It is crucial to choose the right trademark for your business.
Look for the best trademark attorney to help you choose your perfect trademark. A trademark lawyer will ensure that your trademark is protected by the common-law trademark rights. A trademark lawyer will advise you on whether to register your trademark in the Trademark Office and Patent.
These are some general guidelines to help you choose the right trademark.
• You should choose a mark that is distinctive and unique, such as fanciful marks or arbitrary trademarks
• Avoid using marks that look similar to other marks in the same product or service class.
• Avoid generic terms or simply descriptive terms as they cannot be registered as trademarks. It doesn’t matter whether the generic term is an existing word or a created one. Apple, for example, was able register its mark related computers, even though the term “apple” is a true word. However, made-up words that are closely connected to a family product cannot be registered (e.g. “boygear”)
• Avoid suggesting trademarks that could be confused for descriptive trademarks that cannot be registrable
• You can’t register any mark that contains obscenities.
Tips to Create a Fanciful Trademark
The key to creating a unique trademark is to find the “feeling” you want your brand’s consumers to have. George Eastman, the creator of the Kodak trademark, stated that a good trademark should not be complicated, simple to spell, and strong.
You may prefer to use an archaic term. To find the right word, you can look through an archaic dictionary. You can make a new word by combining letters that sound good together. The letters V, Z, and X are often used by pharmaceutical companies. These are just a few of the other options you have to help you come up with the right word.
• List all adjectives you want customers to use to describe your product or brand
• Take a look at the trademarks of your competitors. What are the most common sounds in your industry? What terms are people searching for when they search online for products from your competitors?
• These questions will help you answer the following question: What emotion do you want your product or service to convey? Are you young and playful? Are you formal? Consider your business like a person. This will allow you to create the right sound.
Use a Fanciful Trademark: Reasons to Consider
A fanciful trademark can be a great choice for many reasons.
• Because they don’t have any meaning, fanciful trademarks can be very distinctive. A trademark is stronger if it has no connection to the characteristics of the similar product. Customers can form stronger associations between the mark and your brand. This is especially true for new businesses with unique business models and large marketing budgets.
• Fanciful marks are the strongest type of trademarks because of their uniqueness. You have the exclusive right to use a fanciful trademark. It is easy to stop competitors using it and making a profit from it.
• A fanciful trademark holder can retain it in the event of trademark infringement or cybersquatting disputes. Generic and descriptive trademarks, on the other hand are weak and cannot be protected against third party use. Because there is a fine line in between descriptive and suggestive trademarks, suggesting trademarks can be a less viable option than fanciful.
• A competitor may try to use a slightly different version of your fanciful mark. The court will usually consider this confusing to customers rather than when the words are identical in their sound. A trademark infringement is usually caused by similar fanciful trademarks.
There are reasons to avoid using fictitious trademarks
Fanciful marks can be the strongest type trademark, but there are some downsides that you need to consider.
Fanciful marks can be distinctive but they won’t reveal to your customers what your product is. Before they can associate your product with the mark, you will need to educate them. You will need to spend a lot of money on advertising and marketing, which may not be possible for every business.
What to do if you are accused of trademark infringement
When you get a cease-and-desist letter, it’s scary. You must first understand whether the accuser has a legal case.
It could be trademark infringement, trademark dilution, or cybersquatting. Cybersquatting is the act of choosing a domain name to profit from another’s trademark. Trademark dilution is the use of a trademark to damage its owner’s reputation.
Your accuser must prove that they are the legitimate trademark holder. Because the mark is distinctive and fanciful, it is easier to prove trademark violation. This is your case. The accuser will likely win the lawsuit. You should seek out a skilled trademark lawyer.
If you use a trademark solely for the purpose of commenting or using it artistically, it’s an entirely different situation. The First Amendment protects trademarks from being used for artistic purposes.
Fanciful trademarks can be strong and often work well for businesses. It is important to think about the long-term implications when choosing a trademark.
Post your concern or question on UpCounsel’s marketplace if you need assistance filing your fanciful mark. UpCounsel only accepts the top 5 percent. UpCounsel lawyers are from Yale Law and Harvard Law. They have an average of 14 years of experience in law, including work for or on behalf companies such as Google, Menlo Ventures and Airbnb.