What Is the Most Important Requirement of a Trademark? by Wendy Moyer

Because a trademark has to be able to identify particular goods or services the most important requirement for a trademark is that it is distinctive. That is the only way that the trademark of one company can be distinguished from that of another company.

One of the most important reasons that trademarks need to be distinctive is that it will prevent potential customers from being tricked into purchasing a product from another company that they think was made by your company.

How Can You Make a Trademark Distinctive?

Trademarks can be made to be distinctive by having a unique or fantasy name, such as AACCCAA. Another way a trademark can become distinctive is if the trademark holder builds up recognition of the mark.

For example the word "Apple" is a very common word in the English language. However a computer and communications company was extremely successful promoting that name.

The Distinctiveness of a Trademark Can Vary Over Time

A trademark can become more or less distinctive as the years go by. If a trademark holder aggressively uses a trademark it can become more famous and subsequently may be identified more easily by the buying public.

However, if trademark holders becomes lax in their marketing and public relations efforts then the trademark may become a generic name that people use for every product in that category. You could probably think of a particular brand of tissues that this may have happened to.

Once a trademark is looked at as being a generic name by the public it can destroy all of the trademark rights that the holder of the trademark had earned. Therefore, it shouldn't be surprising to learn that the majority of trademark holders spend considerable time and money trying to stop people from using their trademarked name as a generic name.

Distinctiveness is Applicable to a Trademark as a Whole

The distinctiveness of a trademark is determined by its whole rather than its individual components. In other words, the words "heavenly" and "dreams" by themselves can be quite descriptive if they are used to describe a mattress. Alone they cannot be trademarked. But used together as "Heavenly Dreams" they may be able to be trademarked because they form an atypical juxtaposition which creates a certain amount of distinctiveness.

This does not mean that other companies could no longer use the words "heavenly" or "dreams" on their mattresses. But it would mean that if "Heavenly Dreams" is trademarked by another company they can't sell mattresses called "Heavenly Dreams."

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