Whether you've just started a business or you've come up with a new product or service, you'll want to name it, so people will be able to tell you and your product or service from your competition's. This name that will stand out to the public is called a trademark or service mark.
What's a Trademark or Service Mark?
A trademark is your brand name. It identifies and distinguishes your product from the products of others. To get and keep rights in your trademark you must use it or intend to use it in commerce. A service mark does the same thing as a trademark, but it applies to services, not goods.
To be a trademark, the mark must be identified in the minds of consumers with a particular source of a good or service. Trademarks include just about any means of representing a product. These include words, phrases, names, symbols, graphic designs like emblems and logos, combinations of these elements, and any other marks that distinguish goods or services. Even distinctive sounds and smells can be trademarks.
Trademarks do two things. They protect consumers from confusion as to the source and quality of a product. Many products are alike in form and function. Consumers can distinguish between different products by their trademarks.
Trademarks also protect the investment the maker of a product has in the product. Part of this is goodwill. It's unfair for a rival or competing business to play off of the popularity of a particular product or service by using the same or similar mark. This rival or competitor could obtain business based on the quality or years you've spent building your brand name. What's more, your fine product's reputation could be damaged if consumers purchase an inferior product believing it to be yours because of a similar trademark. That's unfair, and trademark law makes it illegal.
What's in a Name?
There's more to a trademark than just the name you choose. A trademark must represent your product so consumers identify your product with that name. What does this mean for selection of your trademark? Well, the greater the chance consumers associate your mark with your product and only your product, the more defensible your mark is from copying.
Let's examine the types of marks you might think of using for your product. Let's say the product is beer.
Generic Marks
A generic mark is only good for identifying the type of product, not your particular product. You'll get no protection if you call your beer "Lager Beer." Lager beer is a type of beer and says nothing about who makes it.
Descriptive Marks
A descriptive mark is one describing a product characteristic. You decide to call your beer "Foamy Lager Beer." Is this a descriptive mark? The problem is most beers are more or less foamy. Unless you can prove the consuming public associates the "Foamy" name with your beer only, it won't have any protection. This association is called secondary meaning - "Foamy" then doesn't just mean foamy, it means your beer.
Secondary meaning is the legal term used when the descriptive mark has been associated with a particular brand for so long as the public associates the mark with that brand, rather than regarding it as a description of the product. When this occurs, the owner can claim rights in the trademark.
Suggestive Marks
A suggestive trademark is less descriptive of a product characteristic. The further away your mark is from a generic name or some readily identified product characteristic, the more defensible it is. If your brewery is on the coast, you might call your product "Sea Foam Beer." The name is suggestive, but isn't generic to beer.
Arbitrary or Fanciful Marks
Finally we come to what are called arbitrary or fanciful marks. Let's say you name your beer "Surf Break Beer." This is a fanciful mark, one not likely to make a consumer think of beer necessarily or at all. It's a strong mark. Or you could select an arbitrary name for your beer. Use a made-up word with no meaning at all, like "Glinkle Beer."
What makes suggestive, arbitrary or fanciful trademarks better than descriptive or generic marks is they are presumed to have secondary meaning. As you can see or imagine, there are no shortage of suggestive, fanciful or arbitrary marks. Every producer can have one and consumers should not confuse one for the other.
Even a strong, accepted trademark can become useless if you're not careful. The trademarks of very popular products that became the standards for all similar products can be adopted by the public as the word that describes that type of product. "Elevator" for example was once a trademark of the Otis Elevator Company. Now it means that thing you use to go up a building when you don't use the stairs. Owners of other famous brands like Kleenex and Xerox must strive very hard not to let their trademarks become synonymous with facial tissue and copying.