The success of your business can be an indication that your brand is commercially strong, as the nature of a brand, especially its relative strength or weakness, will have a direct influence on its market performance and scope of legal protection. A ‘strong’ trade mark is a trade mark which has a highly distinctive character, thus immediately identifying the proprietor as the source of the goods or services concerned. When a mark is little distinctive, then the mark is considered “weak”. Generally, the stronger a trade mark, the easier it is for it to be eligible for registration and to obtain protection against unauthorized use and registration by third parties.
The relative strength or weakness of a brand can be assessed by placing the brand on a spectrum, also called a brand hierarchy. The types of brands discussed below range from strongest to weakest.
Fancy or invented brands
A fancy or invented brand is at the strongest end of the spectrum because it is inherently distinctive. Such a mark consists of a combination of letters that has no meaning; Thus, it is a made-up word. Examples: GOOGLE for online services, ROLEX for watches, or PEPSI for soft drinks. Since a fanciful or invented trademark has no inherent meaning, a greater advertising effort is initially needed to educate the public about the relationship between the invented word and the owner’s product or service. However, these brands enjoy the widest protection against use by third parties.
Arbitrary marks
An arbitrary mark is composed of a word or words that have a common meaning in the language of the relevant jurisdiction; however, this meaning has nothing to do with the goods or services for which the mark is used. Arbitrary brands such as DOVE for chocolate or soap, APPLE for computers, and CAMEL for cigarettes are regarded as very distinctive in identifying and distinguishing products or services, and the scope of protection obtained is very wide.
Suggestive signs
A suggestive trade mark alludes to or suggests the nature of a product or service, or one of its attributes, without actually describing the product or service. Examples of suggestive brands are AIRBUS for airplanes and NETFLIX (Net (“internet”) + flicks (“movies”) for streaming services. They will require less education of the public than invented or arbitrary brands. For this reason, suggestive marks are generally entitled to significant but less extensive protection.
Descriptive marks
In general, a descriptive mark is a word (or words) that simply describes a product or its ingredient, quality, characteristic, function, feature, purpose, or use. An example of a purely descriptive brand would be COLD AND CREAMY for ice cream. In general, trademarks of this type do not enjoy trademark protection. Purely laudatory terms, such as “best” or “quality”, are also generally not recordable.
Generic words
A generic word is what the public understands as the common name of the product or service in question – for example, “bicycle” is a generic word for bicycles. Such words can never be appropriated by a single party as trademarks for the goods or services they signify, because the public perceives and uses them only as common nouns or terms, and all parties offering ‘bicycles’ should be able to use that term. Generic words or phrases may not be registered or protected in relation to the products or services they designate.
