This article discusses how to make a strong mark. First, I am going to discuss some basic marking principles. Second, I am going to provide suggestions on how to build your brand. Let’s get started.
Marks exist to protect goods in commerce. A person should be able to use a mark to distinguish his or her goods or services from another. You should not try to emulate another’s mark in order to cause confusion in the marketplace. For instance if you want to make a restaurant and call it “MacDonald’s” and use golden arches to attract customers, you will have problems with “McDonalds” who already owns that mark for the same purpose. Similarly, if you use golden arches to sell, say tennis balls, instead of fast food, you would be diluting the value of McDonalds’ servicemark. As a result, you could face liability.
Accordingly, you should endeavor to be original. If your name is Joe and you open a soda fountain and you want to call it “Joe’s soda fountain” you probably can do that. However, the trademark would not be very strong because Jim could open “Jim’s soda fountain” and another Joe could open “Joe’s hamburger stand.” You would have a brand but it would not be very strong unless you could establish that your name was well known in the area.
The more original you are the more distinctive your mark is. There are three kinds of distinctive marks 1) coined marks 2) fanciful or arbitrary marks and 3) suggestive marks. Coined marks are words that do not exist in English and can only be associated with a product such as Xerox or Kodak. These are very strong and generally cannot be used by anyone for any other product. For example selling Kodak cookies would be trademark infringement (or dilution). Fanciful or arbitrary marks are those which have seemingly nothing to do with the product such as Apple Computer or Oil, a Bookstore. These marks are strong, but they can be used to sell other products. For example one is free to sell Green Apples without infringing the computer mark or Heating Oil without infringing the bookstore’s mark. Suggestive marks use ordinary words in a clever way such as The Tune Inn or the Dew Drop Inn. Marketing people like these because they evoke some image relating to the product.
To contrast there are some marks that are very weak 1) your name 2) a place and 3) what you are selling. These do not avail themselves to strong trademark protection because they merely describe what you are selling or where you are selling it. However, with some advertising they may develop “secondary meaning” in the market making them protectable.
In a little more detail, your name includes things like your initials or a nickname. Of course, it is better to use your name than someone else’s to sell products (that practice may avail you to civil liability), however, it does not make for a strong mark. Places are similarly descriptive of the service and are not protectable. Finally, the name of the good (lemon, lime, orange) cannot be taken off of the market.
So you may be thinking, that you want to have strong trademark protection, but you also want to use unprotectable terms. Well, that is why a trademark attorney can be useful to your business. The Law Office of Michael O’Brien can assess your needs and help develop a brand that has marketing and legal strength.