Descriptive Marks: what are they and why should they be avoided?
Opting for a descriptive brand name may seem like a beneficial choice for your business as you can give your customers an indication of what your business does. If you are planning on trade marking your brands name that describes what you do, you may want to think again.
This is because one of the first things an examiner looks at when considering your trade mark application is whether your proposed mark is descriptive of the goods and/or services under the Absolute Grounds for Refusal.
In accordance with the Trade Marks Act, marks that are wholly descriptive of the goods and/or services will not be deemed able to function as a trade mark. As such, any marks that fall foul of the Absolute Grounds for Refusal will be refused for registration. Any marks that are descriptive should therefore be avoided – but what exactly is a descriptive mark?
A descriptive trademark is a word that identifies the characteristics of the product or service to which the mark pertains. An example of this would be “Pizzaz” for pizza or “Cold and Creamy” for ice-cream.
The importance of avoiding descriptive marks is that it firstly needs to be distinctive and capable of being distinguished among similar trademarked products and secondly, it needs to prevent an individual from claiming a monopoly right over a word or phrase.
As such, it is of vital importance that when considering your marks name, you are aware that the distinctiveness element is key. Without it, your trade mark application may be refused.
By Sena Tokel
If you are unsure on whether your business name is descriptive, here at the Trademarkroom we offer a trade mark search service which could give you a better indication.
If you have any questions regarding trademarks or the search service, please contact the Trademark room today where we would be happy to assist you!