21 Nov '23
When starting a business, often one of the first steps is to come up with a catchy name for the company or product. For many businesses and marketing teams, a catchy name equals a recognizable name that makes it clear to customers at a glance what goods or services are being offered. The name basically describes what such a company does, or what kind of product it is. In many cases, we still have to disappoint start-ups and scale-ups when they tell us what, in their eyes, catchy name they have come up with for their new company or product. Because while a name that describes the goods or services may be ideal for marketing purposes, in a lot of cases these are names that do not qualify for trademark protection. And this of course is a pity, especially if this name is already being used and promoted many times by your company!
After all, from a trademark law perspective, how does it exactly work with descriptive names? One of the most important rules for registering a sign, such as a company or product name, as a trademark is that the sign must be distinctive and non-descriptive. A sign is considered descriptive if it indicates a characteristic of the goods or services being offered. In such a case, the sign does not meet the requirements (also called the absolute grounds) of trademark law and the name will be refused as a trademark. The explanation of this rule is actually quite logical. Since a trademark registration gives an exclusive right to a sign, these requirements should prevent a party from obtaining an exclusive right to, say, a generic word, which should remain free for anyone to use.
Therefore, when coming up with a new name, keep in mind (among other things) the rule of distinctiveness and non-descriptiveness. This can be done in a relatively simple way by incorporating a certain play on words, a non-existent word or other witticism into the name, so that it is not directly descriptive of the products or services offered. This way the name is recognizable and you can register it as a trademark, giving you exclusive rights to the name. And with this exclusive right, you can take action against third parties using an (almost) identical name.
Tip: make sure you check at the very beginning whether your name is eligible for a trademark, because it is better to have to make an adjustment at the beginning than when you have already achieved your first successes. If you are in doubt as to whether the proposed name is eligible for trademark protection, one of our trademark attorneys will be very happy to think with you!
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