In trademark law, common terms can potentially function as source identifiers under certain circumstances. Trademarks are typically used to distinguish the goods or services of one company from those of another. While distinctiveness is a key factor in trademark protection, there are instances where common terms can acquire secondary meaning, becoming associated with a specific brand or source. Here is a list of some ways common terms can be source identifiers.
Secondary Meaning
Common terms that have acquired secondary meaning can serve as trademarks. Secondary meaning refers to the situation where a term that is initially descriptive or generic becomes associated with a particular brand in the minds of consumers. To establish secondary meaning, the trademark owner must demonstrate that consumers have come to recognize the common term as identifying the source of the goods or services in question.
Initially a common term, the brand "Dove" has acquired secondary meaning as a source identifier for personal care products, particularly soap. "Holiday Inn" is a common phrase, but it has acquired secondary meaning as a brand associated with hotels and accommodations.
Unique Styling or Presentation
Even if a term is common, unique styling or presentation can help it function as a source identifier. The distinct design, font, color, or graphical elements used in connection with the common term can create a unique brand identity and make the term distinctive in the context of the goods or services.
The unique script and distinctive red and white color combination used in the "Coca-Cola" logo have helped this common term stand out and function as a strong source identifier. The unique typography and the incorporation of an arrow within the "FedEx" logo make the common term visually distinctive and recognizable as a brand for courier and logistics services.
Arbitrary or Suggestive Use
Using common terms in arbitrary or suggestive ways can make them eligible for trademark protection. Arbitrary use involves applying a common term in a context unrelated to its ordinary meaning. Suggestive use implies but does not directly describe the goods or services, requiring consumers to make a mental leap to understand the connection. By using common terms in these creative ways, businesses can establish trademarks that are more likely to be considered source identifiers.
"Apple" is a common term, but when applied to computers and electronics, it becomes arbitrary, as it is unrelated to the industry. The term "Greyhound" is a common term for a breed of dog, but when used as a brand for bus transportation services, it becomes suggestive, implying speed and agility.
Niche or Industry-Specific Associations
Common terms within a particular industry or niche can acquire meaning specific to that industry. If a term becomes associated with a particular field or trade, it may be possible to establish it as a trademark for goods or services within that industry.
As an example, "Bolt" trademark was registered for a software platform in the automotive industry, highlighting the association with fast and efficient performance, similar to the speed of a bolt. Similarly, "Pixel" was registered as a trademark for a digital imaging technology company, leveraging the term's association with the smallest unit of an image, emphasizing their focus on high-resolution and pixel-perfect visual solutions.
It's important to note that the distinctiveness of a trademark plays a significant role in its protectability. The more unique and arbitrary or fanciful a mark is, the stronger the protection it is likely to receive. Common terms may face challenges in obtaining trademark protection due to their inherent descriptiveness or lack of distinctiveness. However, if the common term acquires secondary meaning or is used in a unique and distinctive manner, it may still function as a source identifier and receive trademark protection.
