In order for a word, name, phrase, symbol, design, or other device to function as a trademark, it must be distinctive. Otherwise, it is not a trademark. As such, the concept of distinctiveness is a crucial on in trademark law.
In this regard, there are three categories of distinctiveness when it comes to trademarks. First, there are trademarks that are inherently distinctive. Second, there are trademarks that are non-inherently distinctive but can acquire distinctiveness. And third, there are designations that have no distinctiveness and can never acquire distinctiveness.
With regard to inherently distinctive trademarks, these are designations that the law automatically assumes are valid so to speak. More specifically, there are three types of inherently distinctive marks: fanciful trademarks, arbitrary trademarks, and suggestive trademarks.
With regard to non-inherently distinctive trademarks, these are designations that can acquire distinctiveness over time but the burden is on the claimant to prove that the designations have indeed acquired such distinctiveness in the minds of consumers such that they now function as trademarks. Non-inherently distinctive marks include descriptive trademarks.
With regard to designations that have no distinctiveness, these are are designations that can never be distinctive and can never function as trademarks. These designations are generic terms.
These different categories of distinctiveness are often referred to as the spectrum of distinctiveness. Not only does the placement of a mark on the spectrum of distinctiveness determine whether the designation can even function as a trademark, but it is also used as one of the steps to determine how strong a mark is. For obvious reasons, if given a choice, adoption of an inherently distinctive trademark is preferable. The associated concepts of strength and the different types of marks (fanciful, arbitrary, suggestive, descriptive, generic) referenced in this post will be discussed and explored in more detail in future posts.