Trademark Strength Law and Legal Definition

The legal strength of a trademark can be measured in two ways, such as: the mark's distinctiveness and its level of dilution. Distinctiveness is a measure of the inherent qualities of the mark with relation to the underlying goods or services sold. Dilution looks at the number of other companies using the same or similar marks. When more users are there for a mark, the more it will be diluted. The mark will be provided lesser protection in such circumstances.

Distinctiveness measures the degree to which the inherent meaning of a mark correlates with the qualities and nature of the underlying product. When a mark is distinctive, the mark receives stronger legal protection. Marks that are generic, descriptive, suggestive, arbitrary, and coined or fanciful are considered as distinctive. Marks that are suggestive, arbitrary and coined are considered distinctive immediately upon their first use in commerce. Descriptive marks are not immediately distinctive, but can acquire distinctiveness, and thus legal protection, if they are used or advertised extensively enough in commerce to acquire secondary meaning.

Marks that are strong for marketing purposes are weak legally, and receive narrow protection, or sometimes no protection. Words that describe the qualities or nature of a product benefit from strong marketing potential in the initial marketing stages. This is because they communicate instantly to customers what the product actually is or does. However, long term branding potential of a mark is enhanced with strong legal rights that allow for greater distinctiveness.