Lack of uniqueness and distinctiveness makes a weak trademark.
There are many reasons why trademark owners might choose non-unique terms to represent their products or services.  It’s a family name perhaps.  It’s always been called “this”.  Or even, the desire to look and/or sound like an already well-known brand !

The trademark office will stop many non-unique brands at the gate (at the first review), by issuing a rejection, such as one of these:
  • Failure to Function as a Trademark
  • Merely Descriptive
  • Geographically (Mis)Descriptive
  • Confusingly Similar (Likelihood of Confusion)

There are, however, ways of getting around some these rejections.  Some of them can be registered if they have been in use for 5 years (or 3 or 7, depending on which country).  Some can be registered as a weaker trademark on the Supplemental Register (B) rather than on the Principal Register (A). 

Registration on the Supplemental Register still provides the following advantages:                             

  • The trademark owner may use the registration symbol ®
  • The registration is protected against registration of a confusingly similar mark
  • The trademark owner may bring suit for infringement in federal court
  • The registration may serve as the basis for a filing in a foreign (where applicable)

A weak trademark is still a trademark, and unless the trademark owner expects to actively and aggressively (expensively) defend their trademark from potential infringement, then most trademark owners will not feel any difference in the protection of their brand name from the Supplemental Register (B) versus Principal Register (A).

Should a trademark owner want a stronger protection, his/her trademarks are not doomed to live forever on the Supplemental Register (B).  After X years (X = the minimum legal requirement in that country…X = 5 in the USA), one strategy might be to re-file the application, based on X years usage, and ask to be put on the Principal Register. 

 

STRATEGY TIP:  You should do this at the very beginning of the renewal period (or earlier)

Keep in mind, if you plan on growing, you should choose a name that will “sing” internationally…a name that can be part of your international expansion plan.  Think about how your brand name will “play” in other countries…consistency is key in creating a strong worldwide famous trademark.

 


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