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smith432 · Joined: 24 May 2012 Posts: 347

The strength of trademark rights depend on how distinctive the trademark is. There are four levels of strength: arbitrary or fanciful, suggestive, descriptive and generic. An “arbitrary or fanciful” trademark means that the word does not directly relate to the product, such as a computer company being named after a type of fruit. A “generic” mark is on the opposite site of the spectrum — a company that sells fruit being named after a type of fruit would be an example of a generic mark. Arbitrary or fanciful trademarks are the strongest trademarks, and generic trademarks receive no trademark rights. Suggestive and descriptive trademarks fall somewhere between the two.

A holder of trademark rights can successfully sue someone for infringement of their rights if the alleged infringer uses the trademark in a way that causes a “likelihood of confusion” to consumers regarding the source of the product. The most important factors in determining whether there is a likelihood of confusion are the strength of the trademark, the similarity of the goods and the trademarks used and evidence of actual confusion. Less important factors considered by courts in determining whether there is a likelihood of confusion are the similarity of the marketing channels used, the degree of caution used by the average purchaser and the inferred intent of the alleged infringer.

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