In reality, a generic brand doesn't qualify for a trademark unless it includes more specific details. The strength of a brand is determined in part by its position in this spectrum. Extravagant brands are considered stronger than suggestive brands and therefore are given greater protection by the courts. Suggestive marks are brands that suggest a quality or characteristic of goods and services.
Even though suggestive brands aren't as strong as fanciful or arbitrary brands, suggestive brands are much more common because of the inherent marketing advantage of linking a brand to the product in the customer's mind. Suggestive marks are often difficult to distinguish from descriptive marks (described below), since both are intended to refer to the products and services in question. Suggestive brands require some imagination, thought, or perception to reach a conclusion as to the nature of products. Descriptive marks allow us to reach that conclusion without so much imagination, thought or perception.
Clearly implementing this distinction is one of the most difficult and controversial areas of trademark law. However, descriptive marks may become distinctive by achieving secondary meaning. The secondary meaning indicates that, although the brand is descriptive in its face of goods or services, consumers recognize that the brand has a function of indicating the source. Once a descriptive term or phrase can be demonstrated to have achieved this second meaning (the first meaning being the generally understood meaning of the term or phrase), a trademark is developed that can be protected.
Secondary meaning can be achieved through long-term use or large amounts of advertising and advertising. The acquisition of secondary meaning is often demonstrated through the use of consumer surveys, which show that consumers recognize the brand as a brand, such as FORD, rather than a descriptive term, as trustworthy. Brands that are primarily family names (such as SMITH SHOES or RODRIGUEZ COMPUTERS) receive the same treatment as descriptive marks in the United States. As a result, surnames are not protected as trademarks until they take on secondary meaning through advertising or prolonged use.
A trademark is primarily a surname if the public first recognizes it as a surname, or if it consists of a surname and other material that cannot be registered. Generic brands are devices that actually name a product and are unable to function as a trademark. Unlike descriptive brands, generic devices will not become a trademark, even if they are advertised so strongly that secondary meaning can be demonstrated in the minds of consumers. The reason for creating the generic brand category is that no manufacturer or service provider should have the exclusive right to use words that generically identify a product.
An extravagant brand is, essentially, a made-up word that gives your brand the highest level of legal protection available to trademarks. Like flamboyant marks, arbitrary marks are also inherently distinctive and have a high level of protection.
