I got a question today from a viewer about laudatory trademarks, and how to tell the difference between a laudatory trademark and a suggestive trademark.
As I’ve said, anything can serve as a trademark, including colors, symbols, logos, words, phrases, sounds, and smells. That said, there are some words and phrases that you want to avoid when choosing a trademark, and laudatory marks are one of them.
Laudatory marks are those marks that merely express some sort of praiseworthy quality of the goods. These types of words give the impression of the goods or services having a certain level of quality or excellence. Laudatory marks are a type of descriptive mark, and like other descriptive terms are refused registration because they aren’t distinctive in relation to the goods and services for which the mark has been applied for.
Descriptive marks are those marks that express some characteristic, purpose, or quality of the goods. Whether or not a certain word is “descriptive” must be looked at in the context of the goods or services for which the mark will be used. For example, the word “tall” would be descriptive as to flagpoles, but not as to peanut butter. “Tall” describes the quality of a flag pole, but not the quality of peanut butter.
A laudatory trademark is a trademark that describes a positive quality of the goods or services; in that sense, it is “descriptive.” Laudatory terms are words like ‘best,’ ‘largest,’ ‘foremost,’ ‘quality,’ ‘ideal.” These words do not distinguish the goods, but rather describe some positive quality of the goods.
The reason why these types of marks (with some exceptions that won’t apply to most of you reading this) are not permitted is because if we give one company the right to say that their goods are the “best,” the “biggest” or “wonderful,” then others lose the right to fairly describe their goods and services. Doesn’t everyone believe that their goods are the best, and shouldn’t they have the right to say so? By granting a trademark — which gives the owner the exclusive right to use that trademark with those goods — we are denying others the right to use that phrase with their goods or services.
That said, I did once secure a trademark registration for a client of mine that was laudatory: “WORLD’S LARGEST SUPPLIER OF GUN PARTS.” I had to go a couple of rounds with the trademark examiner, and appeal her refusal to the Trademark Trial and Appeal Board, but they got their trademark registration. That’s the power of having a smart attorney on your side, who knows when to argue and when to stand down.
Suggestive marks are different. Suggestive marks are those that suggest, but do not describe, some quality of the goods. My favorite example is the mark JAGUAR for cars. A Jaguar is a luxury sports car, and the mark JAGUAR perfectly conveys the nature of a luxury sports car. Jaguars are fast and sleek; a Jaguar brand sports car is likewise fast and sleek. Jaguars are sexy and powerful; a Jaguar brand sports car is likewise sexy and powerful. Jaguars purr when they are content; Jaguar brand sports cars purr when you start them up. So you can see how the word “jaguar” conjures up some ideas about certain qualities about a jaguar animal, and then transfers those positive, sexy qualities to a sports car of the same brand name. We’re not describing the car by using the descriptive terms sexy, fast, sleek, powerful. Rather, we are conjuring the image of something that IS sleek, sexy, fast, and powerful and then transferring the word for that thing to the goods or services with which we want to associate with those qualities.
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What’s the Difference Between Laudatory vs. Suggestive Trademarks? posted first on https://trademarkdoctor.wordpress.com
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