A trademark helps differentiate your business from the rest and gives a company a sense of identity. Sometimes, the United States Patent and Trademark Office may determine your trademark does not meet the criteria for protection.

It’s important to know what elements in a trademark may lead to an invalidation and a lack of protection. We’ll help you determine if your trademark is valid and what to do when you have trouble getting legal protection for your mark.

What Is a Trademark?

Trademarks are ways for people to protect their intellectual property from others using it. Trademarks include a logo or slogan that distinguishes a company from its competitors.

Having a trademark does not give you legal ownership of phrases, but it does prevent other companies from similarly using the phrase and delivering a similar message. A company attempting to use another trademark for its gain will run afoul of infringement charges.

Trademarks may end up dead after they’ve been out of use, and other companies can file to use the symbol or words for their use.

Reasons the U.S. Patent and Trademark Office May Not Protect Your Mark

The U.S. Patent and Trademark Office provides several reasons why they may find a trademark invalid and deny an application. Most center around confusion, and the two trademarks bear too many similarities.

Likelihood of Confusion

After you apply for a trademark, the USPTO searches for any other registered trademarks that may be similar to your application. The office reserves the right to invalidate a trademark that is too similar in sound or look to another.

Sound

You cannot have two trademarks that are nearly identical sounding to each other. For instance, if there is already a business with the name B. Thy, the USPTO may deny an application for a new business called Bee Thigh. Though the spelling is different, they are nearly identical phonetically. You must have a verbally distinct name or run afoul of not receiving a trademark.

Appearance

Any logo or stylized slogan needs to look visibly distinct. You can’t take someone else’s slogan and put a new font on it, for example.

Meaning

While it may seem like an easy way to get around trademarks, you cannot use a name or slogan with a similar meaning that you circumvent by using a foreign language. As an example, if there is a business that uses the slogan “The best water on Earth,” the USPTO will likely invalidate an application for a trademark on the slogan “The best water on Terra.” Terra is the Latin name for the planet and is likely too close for a distinct trademark.

Commercial Impression

The commercial impression involves both names and logos. Nike has its iconic Swoosh logo, and you wouldn’t be allowed to use anything resembling it or just copy it wholesale. You would need to find something that doesn’t create the same impression on potential customers. Every logo should create a distinct impression in someone’s mind rather than reminding them of another image.

When it comes to names and slogans, replacing one word in a name is not enough to circumvent invalidation. If another company has the name “Country Boy,” you would likely not be able to use the phrase “Country Man.” Both of these company names conjure up similar images and have the same reaction with customers.

Merely Descriptive

You cannot trademark something that exists as a descriptor of the product. For example, companies saying “greatest crab cakes in Maryland” or “world’s cheesiest pizza” cannot trademark these claims. Similarly, you cannot trademark calling your lobster bisque “creamy.” Trademarks cannot simply describe the product — they need to be unique.

Misdescriptive

If the USPTO determines your trademark will mislead the customer, it reserves the right to not issue a trademark. If you use a slogan implying you have doughnuts at the establishment but just sell candles, the trademark is misdescriptive and will likely end up invalidated.

Primarily Geographically Deceptive

You cannot use a trademark to lie about where something comes from. If you try to name your company “French Winery,” but none of your wine is from France, this is geographically deceptive and misleading. A geographical name should signify the origin of your goods or services.

Just a Surname

The USPTO will likely deny an application for your trademark if it is just someone’s last name. For instance, if you call your business “Aznable’s,” this is just a last name and likely won’t receive trademark protection.

While understanding which types of trademarks never receive protection is crucial, it’s equally important to be aware of the legal consequences if you infringe on someone else’s trademark rights. Find out more about the penalties for trademark infringement to ensure you’re fully informed.

FAQs

Q: What Type of Mark Does Not Receive Trademark Protection?

A: The primary victim of not receiving a trademark is descriptive marks and generic phrasing. Phrases like “most delicious burgers in Idaho” or “world’s best lawn mower” are generic and provide a very broad description of the product or brand. Instead, you need to use a unique trademark for approval from the USPTO.

Q: What Are Three Types of Products That Can Be Protected By Trademarks?

A: Trademarks help protect three things for a business: a unique name, the company’s logo, and any symbol or iconography unique to the brand. All three elements cannot be generic and must not conjure up similar images to other trademarked material. Anything generic or copying of another company’s intellectual property will likely lead to a denial of your application.

Q: Are All Trademarks Legally Protected?

A: Registered and unregistered trademarks have legal protections thanks to the Lanham Act. These protections keep other companies from using trademarked words, logos, or iconography of another company. This legal protection will insulate companies from the risk of someone else attempting to use a similar or exact match of a logo. The USPTO will deny any future applications with similar iconography or wording.

Q: Which Trademark Receives the Most Protection?

A: Logos the USPTO determines to be fanciful or arbitrary are the easiest to protect. These are companies with very distinct names, logos, or lettering that most people find instantly recognizable. A company like Nike and its iconic Swoosh logo is a prime example of one of these distinct trademarks with the most protection.

Four Reasons Legal, LLC: Experienced Copyright and Patent Lawyers

When facing a trademark issue, you need an attorney with plenty of experience. Contact us today at Four Reasons Legal, LLC, for a consultation on any intellectual property issue.