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Recommend Two Tools for Selecting a Suggestive Trademark Over a Descriptive Trademark (Email)

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Time for a little Trademark 101.

The difference can be slight, but the legal effect huge: what’s deemed to be a “descriptive” trademark, and what’s deemed to be “suggestive.”

First, the consequences. A descriptive trademark needs “secondary” meaning to be protected as a trademark. Secondary meaning signals to consumers that goods or services sold in connection with the mark come from a particular source. It’s only through long use — usually five years or more — or lots of sales that a descriptive trademark acquires this secondary meaning apart from its primary, descriptive, meaning, and thus begins to function as a trademark.

Not so with a suggestive marks. They are deemed to be inherently distinctive. In other words, they’re legally capable of functioning as a trademark the moment they’re used. That means no need to establish secondary meaning.

Given the important legal payoff, what determines whether a mark is descriptive or suggestive? Here are two tests you can use to gauge on which side of the fence the mark you’re considering is likely to fall. The first is the “degree of imagination test.”


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