How do I make my trademark distinctive?

The purpose of trademarks and service marks is to make goods and services from one source distinguishable from others. Thus, a mark which is creative and unique will serve its function most effectively because the mark will stand out and leave an impression on the consumer. A creative or unique mark could include a made up word that is new to the language, fanciful use of a word, or a common word that is generally not associated with the particular good or service. It can also include a term which is suggestive, requiring some thought or imagination on the part of the consumer to see the descriptive connection of the mark. Any mark which is determined to be distinctive is eligible for registration upon use, and affords a greater degree of protection against infringement.

While it is common for a business to initially try to use a mark that describes some characteristic of the good or service being provided, this type of mark will usually not serve the function of a mark. A mark which simply describes the type of product will not stand out, especially when there are many other similar goods or services and probably will not leave an impression in the consumer's mind distinguishing that product from others. A mark will be considered descriptive if it describes the intended purpose, function or use of the goods or services, the size of goods, the class of users, a desireable characteristic, or the end effect upon the user. Descriptive marks are harder to register because if the mark is descriptive, then competitors should not be excluded from using terms and symbols that accurately describe their goods and services.

Problems also arise when a business tries to register a geographically descriptive mark. Such geographically descriptive marks can include street, cities, state, nations and continents. Geographically descriptive marks cannot usually be registered. Competitors should not be restricted from accurately describing the location of where their goods and services are produced and sold.

A descriptive or geographically descriptive term cannot be registered unless the term has become so closely associated with a particular good or service that consumers no longer see the term in its typical descriptive meaning, but as an indiciation of a single source for a good or service. This mental association in the buyer's minds between mark and a single source is an indication that the mark has become distinctive, or has gained secondary meaning apart from the dictionary definition of the descriptive term. The mark is registrable once the mark has become distinctive. The consumer's assocaiton between the good or service and the descriptive or geographically descriptive mark necessary to show this distinctiveness can be achieved through continuous use of the mark for many years, and/or strong advertising and promotional campaigns linking the mark and the producer. Under state and federal law, a mark is considered to have become distinctive after five years of uninterrupted use.