Please, for the Love of Money, Stop Making This Mistake When Naming Your Business or Product

Woman in her workspaceBefore you fall in love with a name you want to use for your next business, product or thingamabob, save yourself time and aggravation by crafting a strong trademark in the first place. A strong trademark can go smoothly through the registration process, is highly protectable, and distinguishes your products or services from the sea of others out there. A weak mark, on the other hand, can cost you time, money, and brand-recognition.

Since trademark protection gives you the right to use the mark exclusively, and prevent others from using it, the USPTO will not grant protection to just anything your heart desires. If you try to register a mark that consists of words that everyone else selling similar goods or services needs to use to describe their goods and services, your registration is almost certain to be denied.

For example, Blue Jeans, is not a good mark to sell, ahem, blue jeans. Why? Because every other seller of denim in the world probably needs to use the phrase ‘blue jeans’ at some point to describe their product or service.

Conversely, the more unique, creative, and original your mark is, the more likely it is to be registrable.

Plus, the more creative a mark is, the easier it is to protect. For example, ‘Athletic Footwear,’ is not the most creative name for a sneaker company, is it? However, Nike, which refers to the Greek goddess of victory, is a great name (and trademark) for a sneaker company. If your mark has a descriptive word or phrase in it, such as ‘athletic footwear’ to describe sneakers, you will spend an inordinate amount of time and money policing your mark against all the other sneaker manufacturers who probably need to use the phrase ’athletic footwear’ when describing their product.

However, if you create a new word, use an unrelated word, or combine words in an unexpected way, then you’ve got the Holy Grail of naming a business or product. With such a creative name, when someone else tries to use the same word or combination of words, you’ll have a much easier time protecting your mark. It will be easier to find someone using that unusual mark (via a Google Alert), and it will be easier to show that their use of that phrase is infringing on your trademark rights.

So here’s how to name your next product or service.

In order to obtain trademark protection, your mark should be distinctive and unique in identifying your company and the goods and services associated with it.

Typically, distinctive trademarks fall into three categories:

  1. Fanciful names. These are made up words that have no meaning outside their use by your company. For example, Google and Exxon are both made up words and therefore make for very strong trademarks.
  2. Arbitrary names. Arbitrary names refer to real words used in a way that is unrelated to their normal meaning. The most obvious example of this is Apple. Apple is not a word that is often associated with computers, making it a really strong mark for computers (and a terrible mark for a company selling actually apples).
  3. Suggestive names. Suggestive names are those that use words that suggest a quality or characteristic of the goods or services. Examples of this include Netscape for computer software and Chicken of the Sea for tuna.

There is one category of trademarks that are not distinctive and those are descriptive marks. Descriptive marks are the obvious choice for a business name and therefore are not unique and often not protectable under trademark law. Descriptive marks often describe the product or service directly, use the owner’s name or describe the geographic location of a product or service. Examples of descriptive marks include Smith Shoes, Hilton Hotels, The New York Times. Or even Rachel Rodgers Law Office (What can I say? My hands were tied by the state bar rules for lawyers which require me to include my last name in the name of my firm).

Descriptive marks can only be registered with the USPTO once they have acquired secondary meaning, which means that the company is so well-known that people have come to associate the mark with a particular company or product. Until a secondary meaning is established in a descriptive mark, the mark typically cannot be registered.

As I mentioned above, descriptive marks, if they do somehow make it through the USPTO application process, are expensive to police because you will constantly have to fight others who are also using the mark.

Since descriptive marks are the most obvious choice, you won’t be the only one who thought of it.

Choosing a business name, product name or other brand name that is protectable under trademark law can be tricky. But choosing a name that is fanciful, arbitrary or even suggestive, is good for trademark protection and can be even better for business.

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