In my last post, I discussed why scalable companies shouldn’t use generic or descriptive brand names that can’t be trademarks.
Today’s post discusses the alternative types of names that may be protected by federal trademark law: suggestive, fanciful or arbitrary names
Mark strength in descending order from weak to strong:
- fanciful or arbitrary
In contrast to generic and descriptive names, trademark law may protect suggestive, fanciful or arbitrary names, which are distinctive and make your brand stand out in the marketplace.
A suggestive name is one that requires a little imagination and thought to determine the relationship between the name and the nature of the goods or services that it represents. A suggestive name doesn’t just describe the product or services. For example, “ConstantContact” is a suggestive name for email marketing services. The name “ConsantContact suggests that the service involves frequent contact with others but does not directly describe email marketing services. It takes a little thought to see the connection between the name and email marketing. Similarly, “Zipcar” is a suggestive name for car sharing services. Zipcar implies a service related to cars and speed but it doesn’t directly describe a car sharing service.
Trademark law may also protect arbitrary or fanciful names, which have little or no relationship to the goods or services they identify.
Fanciful and arbitrary names are the most distinctive and strongest type of marks. Fanciful names are often made-up names that have little relationship to the products. For example, ZYNGA for on-line gaming services is fanciful.
An arbitrary name is a word that is used in a strange way. One of the most famous arbitrary trademarks is the name “Apple” for computers. Other arbitrary names include Google (search services); FastCat (software); Mean-Eyed-Cat (bar); and RedHat (software). Fanciful names are also strong, protectable marks, which are usually made up names with no dictionary meaning.
Fanciful and arbitrary marks only gain meaning through commercial use and advertising that associates the name with the goods or services being sold. Fanciful and arbitrary names can be immediately protected upon commercial use.
When I explain the distinction about types of brand names to entrepreneurs, many who want to use descriptive names are discouraged.
When creating your brand name it is important to brainstorm wildly. Your kookiest name may be fanciful or arbitrary and your best, most protectable name.
It can be challenging to dream up a protectable name but many entrepreneurs are doing a great job. See Women 2.0 Founders to read about women entrepreneurs with fanciful, arbitrary and suggestive startup names like Chomp, Buluga, Wildfire, TaskRabbit, Wanderfly,CloudFlare, and MicroMobs.
Jill Hubbard Bowman is an intellectual property lawyer who helps startups create more valuable companies through intellectual property law.
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