If you believe that another party is infringing on your business trademark, you have the right to litigate the other party to seek damages. However, some trademarks may not be easy to protect due to their weak distinctiveness. For your trademark to be protected legally in Ohio, it needs to be crafted in a way that makes it easy to identify and hard to accidently duplicate or for another party to create a similar mark.
Inc.com explains what makes a trademark strong or weak. The strongest marks are those that are inherently distinctive, meaning that they contain elements that are unique. A fanciful mark, for example, contains words that do not have an established dictionary meaning. An arbitrary mark, on the other hand, does contain words or images with known meanings but applies them in a totally different way to the company.
Business owners can also choose to create suggestive marks. While not as strong as arbitrary or fanciful marks, a suggestive mark is used to indirectly suggest the qualities of the product or service the mark is connected to. A consumer, when encountering the mark, usually has to think about the quality of the goods or service the company behind the trademark offers. However, these marks still work as strong identifiers.
Businesses run into problems when their trademarks are merely descriptive of a business’s goods and services. These marks, if they are to be legally protected, have to acquire distinctiveness in the marketplace over a period of time, usually five years or longer. But if the marks fail to attain distinctiveness in the minds of consumers, the marks could be in danger of losing legal protection.
Business owners like to use descriptive marks because they more directly advertise the kind of product they want to sell. However, the truth is that a very distinctive mark stands the best chance of prevailing in court against an infringing party. Keep in mind that this article is written as reference, not as actionable legal advice.