Why Generic and Descriptive Terms Cannot Be Trademarked

In the realm of trademarks, the selection of a distinctive and protectable mark is essential for businesses seeking to establish a unique brand identity. While trademarks serve as identifiers of the source and quality of goods or services, certain terms are deemed ineligible for trademark protection. This blog explores the concepts of descriptive and generic terms, and explains why they cannot be trademarked due to their limited capacity to distinguish one entity’s products or services from those of others.

Descriptive Terms: What they are

Descriptive terms describe the characteristics, qualities, or attributes of a product or service. These terms directly convey information about the nature, function, purpose, ingredients, or features of the goods or services being offered. For example, “Soft Cotton” used to describe a line of clothing or “Sports Illustrated” used for a sports magazine.

Why Descriptive Terms Cannot Be Trademarked

Descriptive terms lack the inherent distinctiveness required for trademark protection. Trademarks serve to identify and differentiate one brand from another, acting as a unique symbol in the marketplace. When a term is descriptive, it is considered to be too common or ordinary, making it unfair to grant exclusive rights to a single entity.

Furthermore, allowing the exclusive use of descriptive terms as trademarks could hinder competition and prevent others from accurately describing their own goods or services. By keeping descriptive terms available for general use, consumers can make informed choices based on the actual nature of the products or services being offered.

Distinctiveness: The Key to Trademark Protection

Trademarks are categorized into distinctiveness categories, ranging from inherently distinctive to generic. In the middle of this spectrum, descriptive terms can acquire distinctiveness through secondary meaning. Secondary meaning occurs when consumers come to associate a descriptive term with a particular source, indicating that the term has acquired distinctiveness in the context of a specific brand.

For instance, the term “Apple” for computers and electronic devices initially had a descriptive meaning related to the fruit. However, through extensive use and marketing efforts, Apple Inc. established the term as a distinctive identifier for their brand.

Generic Terms: What they are

At the opposite end of the spectrum lies generic terms. These terms are the common names for goods or services and are widely understood by the general public to refer to an entire category rather than a specific brand. Examples of generic terms include “coffee” for a coffee shop or “laptop” for a computer manufacturer.

Why Generic Terms Cannot Be Trademarked

Generic terms are entirely lacking in distinctiveness, as they refer to the general category of goods or services themselves. Granting exclusive rights to generic terms would create a monopoly over commonly used language and stifle competition. It is essential to maintain the availability of generic terms to ensure fair and open competition in the marketplace.

The Importance of Trademark Distinctiveness

Trademark law is designed to protect consumers and promote fair competition. Trademarks help consumers identify and differentiate between various brands and make informed purchasing decisions. Trademarks should be memorable, unique, and capable of distinguishing one business from another.

In sum, descriptive and generic terms cannot be trademarked due to their lack of inherent distinctiveness or common use. Trademark protection is intended for marks that are distinctive and capable of identifying a particular source of goods or services. By maintaining this distinction, trademark law upholds fair competition and enables consumers to make informed choices.

Contact Alex to discuss the post or to get started on analyzing your marks for trademark potential.