Trademark Titan™ Blog

Information for in-house counsel, brand owners and entrepreneurs. Committed to international trademarks, copyrights, branding and other IP issues.

Trademark Titan™ Blog  - Information for in-house counsel, brand owners and entrepreneurs. Committed to international trademarks, copyrights, branding and other IP issues.

Trademark Gaff #27: Thinking You Can Protect Generic Terms as Trademarks By MissSpelling Them

Ok. This is a cute move in an attempt to thwart trademark law. Unfortunately, it likely isn’t going to work. Thinking that you can simply misspell a term that is otherwise generic for your products is a fruitless attempt to build trademark rights; and quite frankly, likely a waste of time, money and effort. As Nike® would not say: “Just Don’t Do It!” You will get nowhere fast.

Simply put, if a term is considered generic for your products, a novel spelling of that term is also generic if purchasers would perceive the different spelling as the equivalent of the generic term. The only exception to that rule is if you’re able to successfully misspell a generic term in a manner that the misspelling changes the term’s generic significance. However, such a strategy is unlikely to result in a protectable trademark.

In my own practice I see brand owners attempting this strategy quite often. One of the more common attempts is to misspell the term “cleaner” for cleaners. You’ve probably seen names of cleaners that use the term Kleener. That strategy is not a strategy at all. I’d consider it more of a branding gaff.  The same also holds true generally for descriptive terms.

Strategy: Select Inherently Distinctive Marks Then Add Generic Terms

If you must use a generic or descriptive term or terms in your mark because you want to “tell” the world what your product is, then I give you permission to do so; on one condition, however. You select a distinctive mark (i.e., suggestive, arbitrary or coined) and then simply add a generic term. Think of DieHard® Batteries and CloseUp® Toothpaste. That simple. Now go and build your brand.

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