IP Monday Law Blog 

Picking a new business name? A trademark is more than just a logo — it’s your brand identity. If you invest in a weak or unregistrable name, the United States Patent and Trademark Office (USPTO) may refuse registration. That leaves you vulnerable to costly disputes, rebranding, and loss of goodwill.

And it’s not just about choosing your company’s name. Product names, slogans, and even logo designs play a major role in brand recognition and legal protection. Each of these elements can (and should) be safeguarded through trademark strategy to create a stronger, more defensible brand portfolio.

The wrong choice can cost you thousands in rebranding — here’s how to choose one that clears the USPTO. In today's post, you'll learn:

• How the USPTO decides if a mark is distinctive or descriptive.
• Why fanciful and suggestive marks are stronger than descriptive ones.
• Simple screening steps to avoid rejection before filing.

The Distinctiveness Spectrum

The USPTO measures trademark strength by where it falls on the “spectrum of distinctiveness.” Here’s how it looks with some Michigan-flavored examples:

• Fanciful: Completely made-up words with no dictionary meaning (e.g., CHEVROLET CAMARO — “Camaro” was a coined term chosen for its unique sound). Strongest protection.
• Arbitrary: Common words used in an unrelated context (e.g., MUSTANG for cars — a horse name applied to an automobile).
• Suggestive: Hints at the product without directly describing it (e.g., ESCAPE for a Ford SUV, suggesting adventure or freedom).
• Descriptive: Directly describes the goods/services (e.g., DETROIT AUTO REPAIR for a repair shop). Often rejected unless secondary meaning is proven.
• Generic: Common terms for the product itself (e.g., CAR for cars). Not protectable.

Three Quick Screen Steps

1. Run a Knockout Search – Check USPTO TESS and common law sources for exact and close matches. This also reveals how crowded or saturated the market is. If dozens of similar names are already in use, it may be wise to pivot to something more distinctive.
2. Check Distinctiveness – Ask: does the name describe the product directly? If yes, risk is high.
3. Future-Proof – Consider registering logos, slogans, and product line extensions as your brand grows.

Pitfalls to Avoid

• Adding “.com” or “Inc.” doesn’t fix descriptiveness.
• State registration or domain ownership ≠ federal trademark rights.
• Waiting until after launch to file — by then, someone else may have beaten you to it.

FAQ

Q: Do I need a registered trademark to use a name?
A: No — you can use a name in commerce without registration, and you may gain some “common law” rights. However, without federal registration your protection is limited geographically, harder to enforce, and much weaker if someone else registers a similar name.

Q: Can I still use a descriptive mark?
A: Yes, but it may only qualify for the Supplemental Register initially. Over time, with enough use and recognition, it could move to the Principal Register — but that process is longer and riskier.

Q: Do I need a logo too?
A: Not necessarily. Many businesses start with just a standard word mark. That said, filing for a logo can sometimes help with distinctiveness, since a design mark is narrower by definition than a word mark. We can also help you search and clear design logos to strengthen your protection.

Q: How long does the process take?
A: For a straightforward case, the USPTO is currently taking about 5 months just to issue the first response. From there, a smooth application typically takes 8–12 months total. Complications (like Office Actions) can extend the timeline.

Q: Why bother with a knockout search if the USPTO will check anyway?
A: The knockout search gives you an early warning. It not only shows if your name is likely to conflict with existing marks, but also whether the market is saturated with similar names. If it is, that’s a signal to consider pivoting to something more distinctive before you invest in branding.

Contact Us

Ready to clear your brand name, product name, slogan, or logo? Book a 15-minute name check with Foster Swift's office today to avoid costly mistakes and secure your rights from the start.