Arbitrary Trademark

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Arbitrary Trademark

Trademarks fall into a variety of categories, but arbitrary trademarks offer nearly the highest level of protection.   The strength of any trademark rests solely on its ability to distinguish itself from others. Fanciful trademarks are the only category that accomplishes this more effectively than an arbitrary trademark.

Though not as inherently distinctive as fanciful trademarks, some of the worlds most valuable brands are arbitrary trademarks.

Arbitrary Trademark Examples

There are countless arbitrary trademark examples in current usage.  The following are examples of famous arbitrary trademarks:

  • Amazon (online marketplace).
  • Apple (technology company)
  • Camel (tobacco products).
  • Coach (luxury accessories).
  • Dove (personal care products).
  • Shell (gas stations).
  • Virgin (wireless communications).

While each of these source indicators immediately brings a certain product or service to mind, this wouldn’t have always been the case. All these terms have a specific meaning outside of their brands. Nothing about the words intrinsically describe or even suggest a feature or other aspect of the products/services being offered. This is what’s necessary to be considered an arbitrary trademark.

Arbitrary Trademark Definition

Trademarks that are unrelated to their industry are considered arbitrary. While they’re not completely unique, they are inherently distinctive. This is because consumers wouldn’t typically associate a category of products or services to the identifier. The brand Apple, for instance, has nothing to do with fruits. This is why the trademark is immediately identifiable when used in the appropriate context.

Most new business owners have a tendency to utilize brand identifiers that immediately identify their products or services in some way. While this can help build consumer recognition in the beginning, it does very little to protect a company from a legal perspective. This is why countless companies have chosen verbiage and designs that have nothing to do with their products or services.

Here are a few things to consider when choosing an arbitrary trademark:

  • What does a trademark search show? Any likelihood of confusion between arbitrary trademarks will likely be enhanced.
  • Does any brand use your trademark? Even in the absence of confusion, dilution can still constitute infringement.
  • Describe your brand – not your product (e.g. Rockstar sells beverages rather than musical merchandise, but it suggests a fun and energetic company).
  • Consider real-world perception. Make sure there are no potentially negative connotations to the verbiage you choose.

Of these issues, the biggest concern is that another brand may already be using the arbitrary trademark. Infringement requires that a likelihood of confusion exist among consumers. This means two brand identifiers would usually need to be used within the same industry for issues to arise. The general public is unlikely to ever confuse, for instance, Delta Airlines and Delta Faucets.

When Apple Computer became a household name, though, the brand was sued by Apple Records. While there was no direct competition between the two companies, the potential for trademark dilution through blurring existed. This means that even unrelated usage of a such an identifier can lessen the distinctiveness of the more famous brand. The legal battles between the two Apples went on for over 25 years.

What is Inherent Distinctiveness?

The characteristic that gives arbitrary trademarks their strength is their level of inherent distinctiveness. This trait signifies the ability of a brand identifier to immediately be recognized as a source indicator instead of a descriptor for products or services. Since arbitrary words or designs aren’t related to their given industry, they easily meet this requirement.

Benefits of Arbitrary Trademarks

The high level of inherent distinctiveness that accompanies these terms and designs is advantageous, but this isn’t the only benefit of arbitrary trademarks. While fanciful trademarks garner more protections at face value, their arbitrary counterparts may legally be considered just as unique.

Easier to Defend in Court

If you ever face trademark litigation, ownership over an arbitrary brand identifier puts you in a strong position. It would be difficult for a competitor to prove that use of this seemingly random source indicator wasn’t an attempt at infringement. Even if the action was accidental, though, being the senior user means you’re likely to prevail.

Easier for Consumers to Identify

Consumer identification is one advantage arbitrary trademarks hold even over fanciful identifiers. While developing secondary meaning isn’t required for arbitrary terms to be registered, doing so is simple since they identify a product or service that’s completely unrelated to the representation of the brand.

Fanciful trademarks, on the other hand, essentially start from scratch. Consumers have to identify the brand and then link it directly to the products/services they’re providing. This can be much more difficult for completely unique identifiers than those that already have a foundation in people’s vocabulary.

Reduced Risk of Genericide

Genericide occurs when a brand becomes so successful that consumers begin equating their trademark to an entire category of products or services. This occurred with escalators, yo-yos, trampolines, and aspirin. This is one of the riskier aspects of choosing a fanciful source indicator.

The likelihood of arbitrary trademarks experiencing genericide is minimal. These identifiers already exist in our lexicon, so it’s unlikely that they’ll ever become directly linked with a specific category of goods and services. It’s highly doubtful, for instance, that consumers will start equating every brand of computer to Apple.

Arbitrary Trademarks Compared to other Types of Trademarks

The strength of a trademark exists on a spectrum. Fanciful identifiers are at one end while their generic counterparts offer no protection at all. Although arbitrary trademarks don’t sit at the top of this spectrum, they can still play a significant role in stopping others from infringing upon your brand and reputation.  Recognizing the variety of other types of trademarks available can help you better understand your rights. Several of these alternatives have their own distinct benefits, so if you haven’t yet chosen a brand identifier, it may be prudent to consider your particular business needs. Each of the following are directly contrasted with arbitrary trademarks.

Fanciful Trademarks

Any truly unique brand identifier is considered fanciful. These are words, phrases and designs that currently do not exist anywhere. Exxon, Xerox, Pepsi, Kodak and Clorox are all popular examples of fanciful trademarks. It’s difficult to defend against claims of infringement if violations end up before a judge.

Arbitrary trademarks differ in the fact that they’re only unique in the context of their usage. Their fanciful counterparts are typically considered to be the only brand identifier that provides a higher level of legal protection against infringement.

Suggestive Trademarks

Unlike fanciful and arbitrary source indicators, suggestive trademarks describe some aspect of the product or service being offered. In doing so, however, they require a bit of imagination on the part of the consumer. Like arbitrary brand identifiers, though, suggestive terms and designs already exist in some form.

An example of a suggestive trademark is Jaguar. This wouldn’t immediately indicate a characteristic of cars to a consumer, but with a little imagination, they’d realize the word and logo imply that the vehicle is sleek or fast. If the connection between a brand and its product/service is recognizable immediately, it likely doesn’t fall under the suggestive umbrella.

Descriptive Trademarks

Anything that describes a characteristic of a product or service is considered a descriptive trademark. These are often equated to adjectives. ‘Hot and Juicy’ for hamburgers or ‘Speedy’ for oil change services are both examples.

Unlike arbitrary trademarks, descriptive terms and designs are not inherently distinctive. This means they can only be listed on the secondary Supplemental Register. In order to secure protection on the Principal Register, the IP owner must show that their brand identifier has acquired distinctiveness in the minds of consumers.

Generic Trademarks

Any verbiage or design that describes a category or type of product/service is a generic trademark. This includes terms such as ‘lip balm, ‘ice cream,’ ‘computer’ and ‘hot dawgs’ (purposeful misspellings do not negate generic significance). These descriptors cannot be registered with the USPTO for protection.

Not all trademarks that are generic started out that way. Genericide can occur to any brand identifier that becomes widely used to describe entire categories of products or services. And unlike generic usage, arbitrary trademarks have no connection to the product or service being identified.

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