What is a Descriptive Trademark and When Can It Get Registered?
Trademarks are integral to protecting your brand and your business. A trademark is any name, symbol, figure, letter, word, or mark used to identify and distinguish the source of goods and services. No matter what business you are in, trademarking your brand is imperative to make sure you are protected. Trademarks can be filed on an intent to use status, so you should trademark as soon as you know you will be using that mark or symbol, and provide the evidence on how you intend to use it.
However, it is important to note that not all marks are protectable, specifically, descriptive marks. A descriptive mark is a trademark or service mark which describes the good or service to which they are applied. For example, the words “music player” are descriptive and thus cannot be trademarked as a brand of music players. However, “iPod” can be registered, as it is not describing what the product is. These marks are not protected because they lack distinctiveness, one of the key requirements for trademark registration, meaning a consumer does not immediately know the source of the good/service being provided solely from the mark.
However, there are exceptions. Descriptive marks can become distinctive if they achieve some kind of secondary meaning. In such cases, even though the mark is descriptive, consumers are able to identify the source/company of the mark by just the mark itself. For example, generally, a surname cannot be trademarked as it is considered descriptive. However, there are last names that have acquired distinctiveness due to their secondary meaning. A prominent example would be the Kardashians. In 2014, the Kardashians were able to trademark “Kardashian.” Due to its association with pop culture icons, consumers can assume that any good or service using the name is associated with a famous family.
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