According to a Los Angeles trademark attorney and a Dallas trademark attorney, descriptive trademarks are another type of trademarks. Basically, descriptive trademarks are words, terms, or symbols that identify characteristics or qualities of an article or service, like color, odor, function, dimensions, properties, or ingredients are classified as descriptive trademarks. Further, as a general rule, surnames and terms that reflect the geographic origin of goods or services are descriptive.
Moreover, a significant amount of litigation is devoted to whether a particular trademark is actually descriptive of the product or the service it is supposed to represent. Remember, unlike arbitrary or suggestive trademarks, descriptive trademarks require the owner of the trademark to prove that the trademark is descriptive. This requires a significant amount of legal expense. In other words, there is a higher threshold of proof which is required to prove up a descriptive trademark. Indeed, expert witnesses will probably be required.
According to the United States Court for the Fifth Circuit of Appeals, there are several criteria in determining whether a particular trademark is descriptive. First, the courts will use the dictionary definition of the trademark. Second, the courts will look t the imagination test. Third, the courts will look at whether competitors need the descriptive terms in describing their products or services. Lastly, the courts will look at the extent to which others have used the term in the marketplace.
If you need more information, you should contact a qualified Dallas trademark attorney.
As a general rule of thumb, please note that making decisions with respect to litigating specific trademark areas, you should think about contacting a qualified trademark attorney.
James Bell
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