How to Create a Trademark That's Truly Distinctive

Trademark Dos and Don'ts

Registered trademark label notice
How to create trademark. Image (c) chokkicx/ Getty Images

Your trademark is the most important asset your business will ever own, so it's important to learn how to create a trademark that distinguishes you from the competition and helps you stand out in a crowd. A poor trademark can entangle you in legal disputes and blunt your marketing efforts. Selecting a good trademark is as simple as following these simple guidelines.

How to Create a Trademark 

1. Avoid trademarks that cannot be registered.

There is no point investing in a trademark that you can't register.

Registering the mark protects it from competitors, ensures your ownership rights in the mark, and makes it easier to enforce your rights against copycats. Certain types of words are inherently difficult to register and should be avoided, as discussed below.

2. Avoid purely descriptive words.

Words that describe the nature or quality of the goods or services sold with the mark are not permitted to be registered. Hence, the mark “Cold Beer” for use with malt beverages cannot be registered because it describes the actual product being sold. If registered, it would prevent anyone from using the words "cold" and "beer" to describe their malt beverage.

3. Avoid surnames.

Surnames usually cannot be registered as trademarks. The mark “Wilson Power Boats," for instance, is a poor choice for a trademark because the Wilson is a surname and the rest of the mark is descriptive.

4. Avoid confusing trademarks.

A trademark that is confusingly similar to an already registered trademark cannot be registered.

The mark “Sun-Screen” cannot be registered if the trademark “Sun Screen” has already been registered for a similar type of product, for example. A search of the US Trademarks Database or the ​Canadian Trademarks Database ​is a good idea. Internationally, you can search the Australian, United Kingdom, New Zealand,​ European Union (EU), and Japanese trademark databases.

5. Avoid generic words.

The goal is to select a trademark that is as unique and distinctive as possible, so avoid generic words. Examples of generic terms include “green, superior, Canadian, American, deluxe, gold, premium,” and many others. If you incorporate generic words into your trademark, you ensure that you blend into the crowd, not stand out in front of it.

6. Avoid Three-Letter Acronyms (TLAs) and numbers.

IBM, CTV, and AT&T are distinctive trademarks because their respective owners poured tens of millions of dollars into making the marks famous. Even a poor trademark can be made famous if you throw enough money at it.

But acronyms are intrinsically difficult to remember, while words, especially colorful words, are easily remembered. Hence “ELS Software Solutions” is not as memorable as “Volcanic Silicon.” Likewise, avoid using numbers in a trademark as they tend to be less memorable. It's also true that there are a limited number of unused acronyms available, so there is an excellent chance that your three-letter acronym will be confused with someone else’s.

7. Do use invented words.

Invented words are words that do not exist in any language, apart from your trademark. Examples include Spandex, Exxon, Kodak, Viagra, and several other famous trademarks.

Invented words are a good choice for use as trademarks because they are not descriptive and they tend to be distinctive. You can create an invented word by simply combining parts of other words. For example, Microsoft is a combination of “microcomputer” and “software.”

8. Try animal or plant names.

Animal and plant names tend to be memorable and, if used appropriately, can convey a good image while still being distinctive. Apple Computers, Tiger Direct, ​and Ford Mustang are good examples.

9. Finally, make sure that the first word in your trademark is as distinctive as possible.

It is often necessary to add descriptive words to the trademark in order to convey what is being sold or marketed in association with the mark. If generic words must be included, then ensuring that the first word of the mark is as distinctive and unique as possible is doubly important.

Elias Borges is a patent and trademark lawyer and a registered patent and trademark agent with the law firm of Borges & Rolle LLP in Toronto, Canada.