TradeMark Express Blog: All Things Trademark

Arbitrary Trademarks

The strength of a particular trademark is gauged according to the Distinctiveness & Descriptiveness Continuum. To see a chart, click here.

Arbitrary marks are not as strong as fanciful marks but they are still strong in terms of trademarks. Choosing an arbitrary mark certainly makes the trademark filing process easier, provided, of course, that the mark is legally available.

What is an Arbitrary Mark?

Here’s what the USPTO says:

“Arbitrary marks comprise words that are in common linguistic use but, when used to identify particular goods or services, do not suggest or describe a significant ingredient, quality, or characteristic of the goods or services.”

This is an area that confuses folks a bit. I know that’s a question we get a lot – I can’t trademark a name that’s in the dictionary, right? Well, like anything with trademarks, it’s a gray area. If the product is apple juice then, no, the name APPLE cannot be filed for a trademark as it’s descriptive of the goods. However, if the product is a line of computers then, yes, APPLE can be filed for a trademark.

As long as your arbitrary word is just that – arbitrary – in relation to your goods/services AND the name is legally available, you’ve got a strong mark on your hands!

How do I Choose an Arbitrary Mark?

Choosing an arbitrary mark is similar to that of creating a business name. When it comes to arbitrary marks, your imagination is really needed. Here are some helpful guidelines:

1) Write down all of the adjectives that you want your customer to associate with your product or service.

2) Research your competitors - how often are arbitrary words used? Do most of your competitors use descriptive terms? What kind of keywords/keyphrases are used when searching for your product or service online?

3) What's the personality of your business? Is it serious and formal? Is it fun and funky? Describe your business as if it were a friend of yours.

Those are just some ways to go about finding the "feeling" that you want your product or service to convey. Once you’ve got that set, start thinking about all the different words that convey that feeling.

For instance, if your business is fun and funky words/phrases like Grave Concerns or Staid are probably not a good idea. Conversely, if your business is serious and formal, you’ll probably want to stay away from words like Bubbles or Poodles. Most of all, have fun with it!

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