Are there words you can’t trademark?

Trademarks are designed to distinguish your products from others on the market. But are there any words that they can’t contain? As it happens, there are. Generic terms that don’t single out your product from others using that terms are unlikely to be successfully trademarked.

Trademarks exist for the purposes of protecting IP that's associated with your company, brand, product or service. The idea is to protect elements that distinguish your business from others in your market space.

However, there are certain words that are unable to be used as part of a trademark, because they're considered to be too generic. In other words, you can't trademark anything that another company could reasonably expect to use in their own product promotions.

What are "generic words"?

While there's no set-in-stone list of generic words that are unable to be trademarked, there are certain kinds of words that are difficult to obtain trademarks for. These include:

1. Describing or commonly used words

Words like "global" for a shipping service, "soft" for a blanket or banana might be difficult to trademark for a drink, as many drinks and smoothies will contain bananas. Yet when combined with another term (and in reference to something other than food) trademarks can be granted, as evidenced by the children's TV show "Bananas in Pyjamas".

2. Places

Geographic terms, like names of towns, regions or other areas, are difficult to trademark. Much of it comes down to whether other traders would likely want to use that name in connection with their own goods and services. "Sydney Plumbers", for example, would be difficult, because there will be more than one plumber in Sydney that may want to use the city in their name.

3. Surnames

Generally speaking, common surnames like Smith or Brown can't be used in trademarks either.

If a word is commonly used to describe other products in your market, it will likely be difficult to trademark.If a word is commonly used to describe other products in your market, it will likely be difficult to trademark.

Are there exceptions to the rule?

That said, there are always exceptions to these generalities. If you can show, for example, that your business name that includes a geographical term or common surname has been functioning as a trademark in business – that is, people recognise it as you and aren't confused as to who's being referred to – you may be able to get a trademark.

As a rule of thumb, if you're using common describing words, place names or surnames, you need to show that a trademark would be something that consumers would identify with your product – not all the others on the market.

If you have IP you want to trademark, get in touch with the team at Alder IP today. We provide a free consultation and can advise you on the viability of your trademarkable materials.

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