Wednesday, 09 November 2011

What is a Fanciful Trademark?

Welcome to Trademark Law Radio, a top web resource on issues of trademark infringement, trademark licensing, trademark protection, and trademark registration.

My name is Brian Hall and I’m a trademark attorney with Traverse Legal, PLC, a law firm specializing in the representation of trademark owners throughout the world.  Today, I will be answering the question:  What is a fanciful trademark? 

Before I get into that answer, it is important to look at the spectrum of trademark distinctiveness in which fanciful trademarks fall.  At the lowest end of that spectrum is what’s known as generic trademarks or terms that merely describe a class of products and therefore are not entitled to trademark protection.   Just above generic trademarks are descriptive trademarks, which may or may not be entitled to trademark protection depending on how long they have been used and whether or not the consuming public recognizes them as an identifier source as opposed to merely describing a good or service.  Above descriptive trademarks is what’s known as suggestive trademarks which indirectly allude to some quality of the product and are inherently distinctive and entitled to protection.  But most importantly, the topic of today is fanciful trademarks.  And fanciful trademarks are the strongest trademarks available and entitled to the most protection, and they fall into two categories.

 

The first category, “coined terms” are terms that really had no meaning before the trademark came about.  The most important and common example is Google.  Before the popular search engine existed, nobody affiliated Google as a word with anything.  However, upon launch of the Google search engine, Google is now one of the strongest trademarks out there. 

The second category for fanciful trademarks are “arbitrary trademarks, “and those are common words that are used in a unique or special way such that the word has no relationship to the product or service.  Blackberry is a good example of an arbitrary trademark.  While everyone knows that Blackberry is a kind of fruit, once it was used in connection with a cellular telephone device, it acquired arbitrary trademark status or fanciful trademark protection. 

It is important to determine what your mark is or what your mark could be if you’re looking to come up with a brand or trademark for your good or service.  An experienced trademark attorney who has reviewed multiple trademark applications, multiple cases that had decided whether or not a mark is descriptive, suggestive or fanciful, and someone with general experience in the trademark arena, will be able to assist you in this regard.  It is important to recognize that while fanciful trademarks are the strongest when it comes to protection, they also need to be protected just as any other mark or they may lose their ability to serve as trademarks. 

Fanciful trademarks are particularly susceptible to becoming what’s known as genericized.  And genericized means that once the consuming public no longer deems your mark to be fanciful but rather something that describes a whole class of goods or services, it would no longer be entitled to protection.  So, if you are the owner of a fanciful trademark, continue to protect it. 

If you’re looking to acquire trademark rights and want to ensure that your trademark would be deemed fanciful, you’d be well-served speaking with a trademark attorneuys.  And ultimately, it is important that you continue to protect your trademark and protect your brand so that the fanciful trademark you worked so hard to acquire doesn’t become genericized. 

Once again, this has been Brian Hall from Traverse Legal, PLC answering your question of what is a fanciful trademark.

You’ve been listening to Trademark Law Radio. Whether you are facing a trademark infringement, licensing, monitoring or trademark registration issue, we have a trademark attorney ready to answer your questions.

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