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The Trademark Totem Pole

April 1, 2016

TM Totem Polew

According to Trademark law in the United States, there is a continuum, or Trademark Totem Pole, as I refer to it, by which trademarks are classified. The upmost protection is afforded to the marks at the top of the pole, while those marks at the bottom of the totem pole are afforded little or no protection.

Fanciful marks are marks that have no meaning or words that have simply been made up. The most common and most famous fanciful marks are PEPSI®, KODAK®, and EXXON®. While in a trademark class in law school, we made up our own fanciful term, FLAGNARD. Fanciful marks are afforded the most protection and are positioned at the top of the Trademark Totem Pole.

Below fanciful marks are arbitrary marks. Arbitrary marks are marks that have a common meaning in English, but when used in connection with a particular product or service, its use is not immediately understood. The court in Nautilus Grp., Inc. v. Icon Health & Fitness, Inc., defined an arbitrary mark as “a known word used in an unexpected or uncommon way.” One of the most famous arbitrary marks is APPLE® for computers and electronics. Thus, arbitrary marks are given very strong protection and their rights.

Below arbitrary marks are suggestive marks. A suggestive mark is a mark that, when applied to the products or services, requires a leap of the mind, imagination or thought to determine the nature of the products or services. Some of the most famous suggestive marks are MICROSOFT® for computer software and JAGUAR® for cars. Suggestive marks are often very similar to descriptive marks and it can be difficult to determine where your mark falls on the Totem Pole in some cases.

Descriptive marks are the second to lowest mark on the Totem Pole and are normally not allowed registration on the Principle Trademark Register. Descriptive marks immediately call to mind the products or services of the applied for mark. Descriptive marks also refer to marks that describe any element or feature of the product or service. Even though descriptive marks are not allowed registration on the Principle Trademark Register, the Supplemental Trademark Register is available to descriptive marks (more on this topic in another post). One of the most famous descriptive marks is CALIFORNIA PIZZA KITCHEN® for restaurant services.

Generic marks are positioned lowest on the Trademark Totem Pole. These are marks that are common names of products or services and is understood as such by the purchasing public. Generic marks cannot qualify for any type of protection, either on the Principal or Supplemental Register, because they are the product or service provided and cannot distinguish one company from another. Think about a company named BLUE JEANS that provides blue jeans, does nothing to distinguish this company in a consumers mind. Thus, because generic marks can never be registered, they are placed at the bottom of the Trademark Totem Pole.

If are you thinking about filing for Trademark protection and would like to discuss the nature of the mark you are choosing, we at Trademark Shark™ are here to help you. You can call and speak with one of our trademark attorneys to determine where your mark will fall on the Trademark Totem Pole.


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