Trade Marks

Acquired Distinctiveness: How Trademarks Can Gain Identity Through Use

Max Steinhausen

Trademarks play a crucial role in distinguishing products and services. Trademarks, be they logos, names, or symbols, serve as identifiers that establish a unique connection between a brand and its consumers. While some trademarks are inherently distinctive from the outset, others can acquire distinctiveness through continuous and consistent use in the marketplace. Descriptive trademarks can present challenges, but with the right strategy they can turn into valuable assets. In this article, we explore the concept of how trademarks can evolve and gain distinctiveness through use.

Understanding Trademark Distinctiveness

Trademarks are categorized into different levels of distinctiveness, ranging from generic to arbitrary or fanciful. Inherently distinctive trademarks, such as coined words or unique symbols, have a higher likelihood of immediate recognition and protection. However, many trademarks start off as merely descriptive or suggestive of the goods or services they represent.

Descriptive trademarks, which directly convey qualities or characteristics of the products, typically face challenges in obtaining trademark protection. However, these marks can transform into protectable assets over time through the process of acquiring distinctiveness.

Acquiring Distinctiveness Through Use

Continuous Use and Market Exposure

One of the key ways trademarks gain distinctiveness is through continuous use in the marketplace. As a trademark becomes associated with a particular brand, product, or service, it gradually transforms from being merely descriptive to acquiring secondary meaning. This secondary meaning establishes a strong connection in the minds of consumers between the trademark and the source of the goods or services.

Consumer Perception

The transformation of a descriptive mark into a distinctive one hinges on consumer perception. When consumers come to associate a particular mark with specific products or services, the mark transcends its original descriptive nature. This evolution is a testament to the power of consumer recognition and the ability of a mark to transcend its literal meaning.

Advertising and Promotion

Strategic advertising and promotion can significantly contribute to the process of acquiring distinctiveness. Consistent and targeted marketing efforts help reinforce the association between the trademark and the goods or services in the minds of consumers. Over time, this repetition contributes to the development of a unique identity for the trademark.

Legal Recognition

In many jurisdictions, the legal system recognizes the concept of acquiring distinctiveness through use. Trademark offices and courts consider evidence of long-term and exclusive use when evaluating the distinctiveness of a mark. This recognition underscores the importance of a consistent and uninterrupted history of use in building a strong case for distinctiveness.

Case Study

Well-known brands exemplify the concept of acquiring distinctiveness through use. Consider the Australian brand "CHEMIST WAREHOUSE", which has transformed from a literal description to one of the most recognisable brands in Australia. Through continuous use, advertising efforts, and market success, the mark acquired distinctiveness Australia-wide.

The journey from a descriptive mark to a distinctive trademark is a testament to the dynamic nature of branding. Trademarks that may initially lack inherent distinctiveness can transform into powerful assets through consistent use, consumer recognition, and strategic marketing efforts. Businesses should understand the significance of this process and invest in building a strong and recognizable brand presence in the marketplace. As trademarks evolve through use, they not only gain legal protection but also solidify their place in the hearts and minds of consumers.

This article is general in nature and not intended to provide advice. We recommend you seek professional advice specific to your circumstances.

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I've been working with Max and the team for a number of years now. They have helped me with multiple trade marks, objections/challenges and advice around the technicalities of the law. I would highly recommend talking to them if you're looking for great customer service, advice and results!

Mathew Stillone
Founder/Managing Director, Integrity Food Co.

Thank you to Max and the whole team! Your work is always of a high standard, professional and timely. I highly recommend Max and the team to any organisation needing IP support!

Anthea Thomas
Director, Hypnobirthing Australia

Excellent service, great result. We initially had issues with our trademark and called them to lodge a declaration to support the mark. Our mark was finally accepted and we believe this was only due to the thorough and detailed documents that were submitted to the trademark office. Great work!

Jason Morrisby
Founder/ Director, Mask Co.

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