Hierarchy of Trademarks

The sole functions of a trademark are to identify the source of a product or a service and to distinguish them from the competition. A distinctive trademark performs this function. A distinctive trademark is strong.

It turns out that some marks have a natural tendency to be distinctive. Courts and the U.S. Patent and Trademark Office (USPTO) judge this tendency using the following hierarchy of trademarks:

Fanciful: (most distinctive) a term without a dictionary meaning that is invented for the sole purpose of branding a product or service. They are the strongest trademarks and are entitled to the most protection by courts and the USPTO.

Arbitrary: (highly distinctive) a term with a dictionary meaning that is not related to the product or service with which it is used. They are strong trademarks and entitled to broad protection by courts and the USPTO.

Suggestive: (distinctive) a term that alludes to something about the product or service with which it is used and requires some imagination, thought, or perception to make that connection. They are trademarks and are entitled to protection by courts and the USPTO.

Descriptive: (potentially distinctive) a term that directly conveys something about the product or service they brand. Descriptive marks are only entitled to protection if the owner can show that consumers recognize them as a brand after some period of exclusive use.

Generic: (never distinctive) the common name for a category of product – cannot be trademarked.

As a general rule, distinctive trademarks are preferable because they tend to be stronger and easier to register and protect.