We see lots of information about branding and how to create a brand that sticks. All of that information is vital when beginning a company. Quite frankly, many times we go and create the products and the goodies before we’ve even given the first thought of “the brand.” A little backwards. What is even more backwards is when we think through the brand and the products and goodies, but do not think through whether this name is already being used; whether there are other products that have similar names that customers might confuse with mine; or whether the name is distinctive.
Whether a name is distinctive is one of the ultimate questions in trademark law. Distinctive is an adjective that gets used relatively often in the English language, however in legal speak, there is a specific meaning. As you may already know, trademarks are words, names, symbols and other items that distinguish and identify the sources of goods or services. Unfortunately, not all trademarks are created equal. Whether a trademark is distinctive will affect whether it receives protection and to what degree.
In the realm of trademark law there is this phenom called the spectrum of distinctiveness. The spectrum demonstrates the range of distinctiveness from least to greatest. Obviously those marks that are the least distinctive will receive little to no protection, while those that are most distinctive will receive the most protection. Trademarks are like SAT problems if you think figuring it out was “too easy,” then you are missing something and most likely got it wrong. There is an art to naming a business; it is not an exact science. If it were, we would not have all the court proceeding and litigation that we do!
So the question is, look at your mark, your brand, where does your mark fit in the spectrum?
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