How Strong is Your Brand? (Arbitrary Marks)

This is my fifth blog entry in my series detailing the spectrum of distinctiveness and how the spectrum can be used to analyze the relative strength of a trademark. This post is about marks that are arbitrary. I discussed the relatively weaker types of trademarks, generic marks, merely descriptive marks, and suggestive marks, in previous posts.

Arbitrary mark on the distinctiveness spectrum.

An arbitrary mark is one that has no relation to the goods/services it represents. The Federal Circuit has defined an arbitrary mark as “a known word used in an unexpected or uncommon way.” For example, a computer seller can trademark the word “Apple” to sell computer products, because there is no relation between apples and computer products. Other examples of arbitrary marks include “Old Crow” for whiskey and “Windows” for computer operating systems.

Arbitrary marks are considered strong brands (assuming no one else was using your mark for similar goods/services before you started). Like a suggestive mark, an arbitrary mark can be registered directly to the Principal Register.

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