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S=Selection on the INSURE Drive to Trademark Distinction
© Cheryl Hodgson 2009 | Posted on May 4, 2009
In previous posts we have discussed the first stops on the INSURE drive to a distinctive brand, Investigation and Noodle. Now come to one of the most important topics of all, Selection. Selection without Investigation is like playing the Lottery, and hoping you come up with a winner. Because I see this as the most common area in which new brand owners get confused, we’ll remain on this stop on drive to brand distinction for this issue, and next as well. Remember, any brands you choose will require trademark monitoring, maintenance, and must qualify for federal trademark registration. Poor selection requires more time and money in for trademark monitoring, maintenance, and increases the risk you will be unsuccessful in obtaining federal registration.
Simply put, you can spend the time and money do it right to begin with, or dramatically increase the odds you’ll be spending many times that amount later on the drive.
What factors should you consider when selecting a term? Everyone should consider the strength of the mark, namely, is it strong or weak, and where does it land on the continuum of marks?
What is a “continuum?” A continuum is “a continuous extent, succession, or whole, no part of which can be distinguished from neighboring parts except by arbitrary division.”
What is the trademark continuum? The trademark continuum goes from “strong to weak” and is based upon a series of “labels,” namely:
While many terms fit neatly into one or labels categories, others along the continuum are in the gray area. The stronger the mark, the greater the legal protection that will be afforded. With a strong distinctive mark, you the trademark owner can more easily monitor the market place and easily police your rights with less risk of legal challenges to its validity in court.
The further along the continuum one goes, the less protection a court will afford to your mark unless you can show that the public knows your mark, and it has “acquired” distinctiveness. This can be a painful and expensive process. For those that don’t measure up, descriptive, merely descriptive or generic terms, we suggest: “Forget about it.”
Surf the Continuum with Real Life Examples:
Be forewarned, some will make sense others won’t and court decisions deciding one way simply can not be reconciled with others that are virtually identical!
COINED or FANCIFUL are terms that are “made up” to function as trademarks and are inherently distinctive.
ALTOIDS®, used as a mark for The Original Celebrated Curiously Strong Peppermint® is one of the oldest and strongest coined marks, dating back to first use in the 19th Century!
Other well known fanciful marks are EXXON®, XEROX® and CLOROX®
APPLE is an excellent example of an “arbitrary” mark, namely descriptive or generic term applied to unrelated goods or services. An apple has nothing to do with computers, or least it didn’t 25 years ago!
We will “continue” with more in our next issue!
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