Trademark Law and Naming Strategy: Why Distinctive Names Matter

The spectrum of distinctiveness explains why some brand names are stronger than others in trademark protection and branding. Generic terms like “milk” or “bread” can never be protected, while descriptive names such as “Quick Print” are weak unless they gain recognition. Suggestive names like Coppertone or Netflix are inherently distinctive, balancing creativity and clarity. Arbitrary marks like Apple for computers are highly protectable but need marketing to link them to the product. At the top are fanciful names like Kodak or Verizon—completely invented, legally strongest, and iconic with investment. The takeaway: the more distinctive the name, the stronger the protection and brand.

Disclaimer: We are not attorneys and do not provide legal advice. We always recommend consulting an IP attorney.

Chapters

• 0:08 Introduction: Why Distinctiveness Matters
• 1:04 Generic Terms: The Unprotectable Names
• 2:03 Descriptive Marks: Weak but Sometimes Workable
• 3:07 Suggestive Marks: Creative and Protectable
• 4:11 Arbitrary Marks: Real Words, New Contexts
• 5:10 Fanciful Marks: The Strongest, Coined Names
• 6:02 Recap: Building a Stronger Brand Through Distinctiveness

Transcript

Ashley Elliott (00:08):

Hello and welcome back to naming in the AI Age. I'm Ashley, and today we're diving into one of the most important concepts in trademark law and brand strategy, the spectrum of distinctiveness. In other words, why some names are basically impossible to protect and others give you powerful legal rights and a stronger foundation for your brand. This is something a lot of entrepreneurs, marketers, and even seasoned business owners misunderstand. They think that just filing any name with a USPTO will automatically give them strong protection, but the truth is not all names are created equal. The distinctiveness of your name can make the difference between building a brand that lasts and building one that gets challenged, copied, or just lost in the noise. We're not attorneys. This is not legal advice. It's simply information we found helpful in the naming process for legal guidance, always, always, always consult a qualified trademark or IP attorney.

(01:04):

Now, let's start at the bottom of the ladder. We have generic terms. A generic term is simply the common name for the product or service. Think milk for milk and bread for bread, computer for computer. The law is very clear here. Generic terms can never function as trademarks. You can't own the exclusive rights to call milk. Milk. If someone tried, competitors would have no way to describe their own products. So if you're tempted to pick something hyper, literal, like calling your new phone company, phones, don't do it. It won't be protectable and you won't stand out in the marketplace either. Next up are descriptive marks. These are names that directly describe a feature, quality, or purpose of the product or service. Things like cold and creamy for ice cream, quick print for a print shop, or sharp for knives. Here's the problem though. Descriptive names are considered legally weak because other businesses often need to use those same words to describe their products and services too.

(02:03):

There is a path to protection. If your descriptive mark develops what's called a secondary meaning, that's when consumers come to associate the descriptive name with one specific source. Think about maybe, perhaps Holiday Inn. Originally, it was a descriptive phrase for hotels, but it gained distinctiveness over decades of use in marketing. Now, for a new brand, starting out with a descriptive name is really risky. You'll face a tougher time getting registered, you'll have a harder time enforcing your rights, and honestly, you'll just blend in instead of standing out. Now let's move up to suggestive marks where things start getting a little interesting. So a suggestive mark doesn't describe the product directly. Instead, it hints at a characteristic or benefit requiring the consumer to use a little imagination. Take Coppertone for sunscreen. It suggests a Coppertone tan, but it doesn't literally describe sunscreen lotion or Netflix, which hint that films delivered over the internet, but still requires a mental leap.

(03:07):

To get to that. From a legal standpoint, suggestive marks are stronger. They're inherently distinctive, which means that they can be protected without having to prove secondary meaning. From a branding standpoint, they strike a nice balance. They're creative enough to stand out, but they're intuitive enough that consumers get it barely quickly. Now, we have arbitrary marks. These are real words, but applied in completely unrelated ways. The classic example of this is apple for computers, nothing about fruit describes laptops, which makes the mark distinctive and highly protectable. Other examples include Amazon for an online marketplace or camel for cigarettes. These are everyday words with dictionary definitions, but in their trademark context, they're unique and more ownable. Arbitrary marks tend to be very strong legally because they're unusual in that context. From a branding perspective, they're also memorable. Think of liquid death for water. The only challenge is you may need some marketing to help consumers really connect the dots between the word and the product.

(04:11):

But that's a trade off that most successful brands are happy to make. And finally, at the very top of the spectrum, we have fanciful or coined marks or names. These are completely made up words invented solely to function as trademarks. Think Kodak, Xerox, Verizon, Pepsi. These words had virtually no meaning before they were created because they're invented fanciful words or marks. They're the strongest ones of the sets. They're inherently distinctive, easy to protect, and often iconic once they're established. The trade-off is that coined words don't often tell consumers anything about the product. You'll likely need more marketing investment to build that recognition, but the upside is enormous. Once consumers know the name, it's completely yours with no built-in competition. So let's recap. Generic names are the hardest to protect and usually won't give you much brand power. Descriptive names can sometimes work, but they often start out weaker and take time or heavy use to gain that legal strength.

(05:10):

Suggestive names strike a nice balance. They're protectable, they're creative, and often intuitive for consumers. Arbitrary names are highly distinctive and memorable. Though they may require a little bit more storytelling to connect your audience and fanciful names, those completely invented names offer the strongest protection, but they also ask you to do more work upfront to build that recognition. Each style really comes with its own benefits and challenges. The key is to understand where your name sits on the spectrum and how that choice lines up with your brand goals, your resources, and the story that you want to tell. Here's the big takeaway. The more distinctive your name, the stronger your IP protection, the stronger your brand. Think of it this way, naming your cider. Fresh apple cider not only gives you zero protection, it makes you sound like every other cider on the shelf. Naming it.

(06:02):

Angry Orchard, on the other hand, gives you a distinctive story, a unique brand identity, and far stronger legal footing. So when you're evaluating names, don't just ask, do I like it? Ask, where does it fall on the spectrum of distinctiveness? Because that will tell you a lot about how well you can protect it and how powerful you can build it. That's it for today's episode of Naming in the AI Age. I hope this breakdown of naming distinctiveness helps you see why some names are stronger, safer, and ultimately more brandable than others. Until next time, protect your ideas, protect your name, and keep building boldly. Thanks guys.