Trademark Talk with Erin Ep. 2: What is a Descriptive Trademark?
Episode 2 of ‘Trademark Talk with Erin” has released on YouTube! Episode 2 discusses trademarks and descriptive marks. Let’s explore descriptive marks in more detail!
What are Descriptive Marks?
Descriptive marks are words, symbol, or other indicia that describe the characteristics, features, or ingredients of the product or service. Generally, descriptive marks are not considered inherently distinctive and may need to satisfy other requirements before they can attain trademark protection. One such requirement is that a descriptive mark must attain secondary meaning before it can qualify for trademark protection.
Descriptive words for Products
You may be thinking “hey, how would I describe my product or services if someone trademarks a word or mark that describes my goods?” For example, let’s imagine a scenario where you sell a chicken breading product to coat chicken called “Chick Fry.” However, another company trademarked “Chick Fri.” How would you then describe your product? Call it “Poultry Fry” or “Carbohydrate Covering for Chicken?” That would have consumers scratching their heads wondering what exactly it is you sell. That would be unfair right if one party has the exclusive right use words that describe goods, right? That was also the issue in Zatarains, Inc. v. Oak Grove Smokehouse, Inc., 698 F.2d 786 (5th Cir. 1983).
The Zatarains Case
The Zatarains case explored the interplay between trademark rights for descriptive marks and its effects on the market. The courts found “[t]he holder of a protectable descriptive mark has no legal claim to an exclusive right in the primary, descriptive meaning of the term; consequently, anyone is free to use the term in its primary, descriptive sense so long as such use does not lead to customer confusion as to the source of the goods or services.”
To read the full Zatarains case, click here.
What questions do you have about descriptive marks? What about descriptive fair use? Leave a comment below or give us a call we can help!
Check out episode 2 of “Trademark Talk with Erin” here!
Remember! There will be weekly episodes of “Trademark Talk with Erin,” so stay tuned!
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Disclaimer: This article is not legal advice. It is only for educational or entertainment purposes only. Please do not use the article or contents of the article without permission. For legal advice and questions, please contact registered Patent Attorney Vincent LoTempio.
