Trademark strength is a term that refers to the legal strength of a trademark, rather than its strength in terms of branding and marketing.
Why do you need a strong trademark?
You have every right to use a weak trademark; you just can’t get it protected. That means that other companies can use similar marks, which can lead to confusion by the public and affect your brand’s reputation.
When your trademark is strong, you can:
- Protect your good will from being exploited or damaged by other companies. The term goodwill refers to positive sentiment that the public has toward your brand.
- License your trademark for extra revenue
- Increase the market value of your business
What gives a mark “strength?”
A strong mark is distinct, particularly within the industry of the brand it represents. As a general rule of thumb, a good indicator of strength is that it takes considerable marketing effort to educate the public about what product the mark represents (ironically, the things that make a trademark “weak” are the very things that help people to understand the product that the mark represents).
Language that is literal and descriptive, as in, say, the name Sticky to describe duct tape, is weak and is not offered protection. Descriptive language is fundamental to talking about certain products, so it’s unfair for one brand to be able to monopolize such terms. For this reason, language ruled as generic, such as “tape” or “soda” is not protected at all.
Types of trademarks, in order of strongest to weakest
Fanciful marks are considered the strongest types of trademarks. These are made-up words, like Google. They have (or once had) no meaning at all. Note that some made-up words, like Microsoft, are ruled as suggestive, rather than fanciful, because they are made up of words with real meaning.
The obvious challenge with fanciful marks is that they don’t educate the public on what your product is, or what it does. This means you’ll have considerable costs in educating them.
Exxon and Rolex appear to be completely made-up words, and the public has only come to understand what they mean through marketing and longevity.
These marks are known words, but don’t have any association with the products they represent. Since they don’t use language that is common in their respective industries, they are considered strong.
Apple, Amazon, Dove, and Shell are examples of arbitrary marks.
These marks tell you something about the product, but still have a fair amount of strength because they don’t use language that is necessary to describe the product.
Greyhound implies something about the product (speed), but is neither generic or descriptive because it doesn’t use words commonly used to discuss buses or travel.
Descriptive marks describe the product, quite literally, and will often be adjectives. Note that there is a difference in strength between descriptive and “merely descriptive”. Merely descriptive marks have no strength at all, since they use common language for describing products in their industry. However, a merely descriptive mark can graduate over time to be considered as having secondary meaning. In other words, some distinctiveness is granted because a company has used a trademark long enough that public begins to associate it with the product.
Generic words are even less distinct than descriptive language, because they are the accepted terms for referring to a product. While the word “sticky” or “tough” refer to features of a product, the word “tape” refers to the product itself. As such, the mark is offered zero protection.
In an ironic twist, the made-up names of successful inventions often become the accepted term to describe the invention, which turns the name into a generic mark. Aspirin is an example of a mark that actually became generic over time.
How much strength does your trademark need?
Weak trademarks come with the cost of having little-to-no protection, while strong trademarks come with the cost of educating the public on what the product represents.
For businesses with big marketing budgets, the focus is often on choosing a trademark that is catchy and will have a nice ring as a household name, like the aforementioned fanciful and arbitrary marks: Google, Exxon, Rolex, Apple, Amazon, Dove and Shell.
Smaller businesses may be tempted to settle on a trademark that is highly descriptive, because it makes it easier and cheaper to educate the public on their product. However, the conflict and/or confusion of brands that arises from using a weak trademark can have a much bigger cost than extra print.
Businesses need to weigh the advantages and disadvantages of trademark strength and make an informed decision. The best way to know if the strength of your trademark is consistent with your goals is discuss it with an expert.