Trademarks have varying levels of strengths depending on the strength of the underlying term used as compared to the goods or services at issue. Fanciful trademarks provide the greatest protection against trademark infringement. So what exactly is a fanciful trademark?
What Is a Fanciful Trademark?
In general, a fanciful trademark is a trademark with words that are invented solely to function as a trademark and therefore the mark only has meaning when applied to the specific trademark.
Fanciful Trademark Definition
Fanciful trademarks are unique to their very core because they were created exclusively as a means to become a trademark for a specific product or service.
This means there cannot be any dictionary definition for the trademark apart from defining it as specifically related to the specific good or service. Thus, the trademark is inherently distinctive.
Inherently distinctive means that the trademark is immediately recognized as a source identifier by the general public. It also means that, because it is inherently distinctive, the general public will not confuse the trademarked goods or services with other goods or services.
For example, the trademark Nike provides the public with an immediate understanding of what the source identifier is. Moreover, the general public would not confuse Nike with some other similar goods or services because it is so inherently distinctive from any other trademark.
Fanciful Trademarks Vs. Generic Trademarks
Generic trademarks are trademarks that use words that clearly spell out and explain the goods or service that is being sold. While these types of trademarks can be helpful because they let the consumer know very clearly exactly what type of goods or services the consumer will receive, they are generally very weak as a trademark.
This is because the strength of a trademark depends on the uniqueness between which a consumer can associate a trademark and its associated good or service. Weaker trademarks are descriptive rather than unique.
Fanciful trademarks, on the other hand, are trademarks that only have one specific meaning because the mark exclusively describes the specific good or service that is being sold. Thus, it is not a descriptive name but rather a name that is specifically associated with only the underlying product at hand.
Examples of Fanciful Trademarks
Perhaps the best way to understand what distinguishes a fanciful trademark from a generic trademark is to provide some examples.
Here are some examples of fanciful trademarks:
- Kodak
- Xerox
- Rolex
- Sprite
- Polaroid
- Pepsi
- Nike
- Verizon
- Toyota
As you can see, each of these trademarks use no terms associated with the underlying product or service sold and therefore can be used only to describe the specific trademark in question.
Why a Fanciful Trademark Is Beneficial
A fanciful trademark is beneficial for you as the trademark owner because it is considered a stronger trademark than one that is merely descriptive.
A fanciful trademark provides true exclusive rights to the trademark holder. Notably, however, these exclusive rights only extend to trademarks within your specific industry. A fanciful trademark is also beneficial because it establishes prima facie strength right away, as opposed to developing trademark strength over time.
Prima facie strength means that, from a legal perspective, the trademark will be accepted as true and correct until proven otherwise. This is a powerful state within the law because it means that any opposing parties would have to prove why the trademark is not strong, shifting the burden on to the other side.
Fanciful trademarks are also beneficial because, should you end up in litigation, a court is typically more likely to award an injunction against an infringer. As a general rule, injunctions are more helpful than damages should someone infringe your trademark because it stops the infringer from using the trademark at all.
Fanciful Trademarks Compared to Other Trademarks
As explained above, fanciful trademarks are extremely beneficial for the owners as inherently distinctive source identifiers for goods or services. There are other types of trademarks that have lesser strengths than fanciful trademarks.
Arbitrary Trademark
An arbitrary trademark is a trademark that has an underlying meaning on its own, but that underlying meaning does not necessarily describe the associated good or service that the trademark is specifically used to support.
For example, the brand Apple is a type of arbitrary trademark. While apples are a type of fruit, the word apple has nothing to do with computer products. Therefore, the word apple is inherently distinctive as applied to computer products and therefore is an arbitrary trademark that can obtain trademark protection.
Suggestive Trademark
Suggestive trademarks are those that suggest the quality of the good or service being offered. This means that, rather than describing a good or service, they require the consumer to use his or her imagination in order to associate the trademark with the pertinent good or service.
Suggestive trademarks are considered the next strongest trademarks following arbitrary trademarks.
For example, the business name Netflix is a type of suggestive trademark. By combining part of the word internet and a variation of the word “flicks,” the name Netflix suggests that it provides internet-based movies, but ultimately requires the consumer to use his or her imagination to fully make that inference.
Descriptive Trademark
Descriptive trademarks are a type of more generic trademark that describe the underlying good or service. Descriptive trademarks can only obtain protection once a sufficient amount of goodwill related to the trademark has been developed. For example, Bank of the West is a descriptive trademark that generically describes the underlying service provided.
Generic marks on their own cannot receive trademark protection because they are simply generic descriptive terms that are used by the general public to describe goods or services generally.
In some instances, when a trademark becomes so ubiquitously used to apply to a specific type of product or service, the trademark can lose its legal status. Examples of this include Aspirin, cellophane, and dry ice.
