Welcome to Trademark Law Radio, a top web resource on issues of trademark infringement, trademark licensing, trademark protection, and trademark registration.
This is Trademark Attorney Brian Hall with Traverse Legal, PLC, a law firm representing trademark owners throughout the United States. Today, I will be answering the question: “What is an arbitrary trademark?”
An arbitrary trademark is an inherently distinctive trademark. Meaning, that it is a mark that’s entitled to the protections that other inherently distinctive trademarks are entitled to. So, as opposed to descriptive trademark, which isn’t entitled to the exclusive right to use a particular mark in connection with goods or services. Put simply, if you are looking to have a particular kind of trademark, it’s better to have an inherently distinctive trademark because it gives you all the benefits that go along with those trademark rights.
In particular, an arbitrary trademark is a word with significance recognized in everyday life, but instead of signifying that particular thing, it signifies something entirely unrelated to the product or service to which the mark is attached, for example, cigarettes. There is a particular brand called Camel. Camel is an everyday term or word referring to a particular animal, but it has no relation to or significance to cigarettes. Similarly, Apple for computers and the related devices or even Blackberry for the particular kinds of mobile phones. These types of marks utilize dictionary words but put them in connection with a good or service that has no relation to what it is. Therefore, they are inherently distinctive.
Arbitrary trademarks are very strong and entitled to protection under law. Most cases that review whether a particular mark is strong or not, will deem that arbitrary trademarks are of the strongest kind available. There, when you are determining what kind of trademark to choose for your goods or what kind of service mark to choose for your services, it’s important to know the various levels of strength that are attributed to kinds of marks. You do not want to have a generic or merely descriptive mark. Instead, you want the various kinds of inherently distinctive trademarks, which are suggestive, arbitrary – like we’re talking about now- and fanciful trademarks.
Now, while some people tend to choose marks that give consumers a better idea of what they’re selling and shy away from arbitrary trademarks, it’s important to recognize the implication of doing so. From a trademark law perspective, merely describing your goods or services with a descriptive mark or even a generic mark, will not provide you any trademark rights. However, using arbitrary trademark will provide you with the trademark rights necessary to make others cease and desist from continuing to use a mark that would create a likelihood of confusion. Put another way, gives that trademark owner an ability to go after and stop those that are infringing his or her particular trademark.
So, ultimately, as a trademark attorney, I tend to advise my clients to select, where possible, inherently distinctive marks, such as an arbitrary trademark. However, in the event that they have not selected an arbitrary trademark or are already using a mark that wouldn’t qualify as an arbitrary trademark, there are still things that can be done to enforce your trademark rights and do the necessary policing of your mark in order to ensure that you maintain whatever trademark rights you have, regardless of strength of that particular mark.
So, once again, this has been Brian Hall answering your question: “What is an arbitrary trademark?”
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