How the USPTO determines if a word/ logo is trademarkable

What Can Be Trademarked?

Phrases, words, symbols, sounds, and even colors are all eligible for trademark protection. Anything that identifies your brand and is used to distinguish your company or goods/services from other companies can be trademarked. 

Trademark may be used to distinguish your company from others and indicate the source of goods/services. It is important to note that just because you have a trademark doesn't mean you own a complete monopoly on your symbol, logo, or name. Your trademark is linked to the same and similar types of goods and services associated with your trademark. For example, McDonald's may have a slogan that says "I'm Lovin' it," that is associated with the food industry but if you start using the slogan in the automotive industry you would be within your rights and would not be infringing McDonald's trademark.

In determining whether your mark is trademarkable, the United States Patent and Trademark Office (USPTO) will determine whether any other marks already in use would create a likelihood of confusion with another brand. For example, if a consumer saw your brand and another brand and wasn't sure which company sold each good/service (e.g. the individual thought your company sold another companies goods/services or vise versa) then your mark is not trademarkable and may infringe another company's trademark.

What Can't Be Trademarked?

Before we talk the standards for what is trademarkable, it is worthwhile to note there are several words and phrases you typically cannot trademark (with a few exceptions):

  • Proper names or surnames
  • Generic terms or phrases
  • Government symbols or insignia
  • Vulgar or disparaging words or phrases
  • The likeness of a U.S. President, former or current
  • Immoral, deceptive, or scandalous words or symbols
  • Sounds or short motifs that are covered by copyright instead.
  • Descriptive names that can't be distinguished from those of other products
  • Names that include a geographic location, such as California Pizza Kitchen
  • Generic names
  • Deceptive names
  • Lacks any distinctive properties or characteristics
  • Consists of signs or designations that define how the product is made
  • Has become customary language in the country of origin

Strength of your mark

Aside from the exceptions above, almost any word, phrase, or logo/design may be trademarked. However, not all trademarks are created equal. Some trademarks are stronger and more valuable because the court system is not likely to find the trademarks invalid:

  •  Generic Terms. These typically cannot be trademarked because consumers use them to describe a general type of goods/service. Examples include Thermos, Kleenex, Q-Tip, Aspirin, Dumpster, and Band-Aid.
  •  Descriptive Marks: These directly describe what the product does or a characteristic thereof. Example include fast to describe a phone or light to describe a laptop.
  •  Suggestive Marks: These stand for a product, yet don't describe it. Examples include: MICROSOFT (suggestive of software for microcomputers), NETSCAPE (suggestive of software which allows traversing the "landscape" of the Internet), SILICON GRAPHICS (suggestive of graphic oriented computers)
  •  Arbitrary Marks: Words common to the English language, yet meant to describe something else. Think Apple.
  •  Fanciful Marks: Names that are unique and original, such as Tylenol or Xerox.

Note, a trademark also refers to an entire trademark and not pieces that add up to a total trademark. For example, the words "dry" and "baby" can describe diapers, but on their own they cannot be trademarked. However, if you put the two together to form a brand called "Baby Dry," it would be a valuable trademark because of its distinctive nature.

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