The name that explains your product is the one you cannot own

Founders want a name that says what the business does. Trademark law offers the least protection to exactly those names. The reason is not arbitrary: a word that describes the product is a word your competitors need too, and the law will not give one trader control of the ordinary vocabulary of the trade.

The spectrum

Names fall along a scale from generic (never protectable), through descriptive (protectable only once the public has come to see them as a brand), to suggestive, arbitrary and fanciful (protectable from the first day of use). The further right a name sits, the easier it is to register and the more you have to spend teaching people what it means.

Where the categories come from

The five-step scale is usually traced to Abercrombie & Fitch Co. v. Hunting World, Inc., a 1976 decision of the US Court of Appeals for the Second Circuit about the word “Safari” on clothing. Judge Friendly set out the categories, and American courts and the USPTO still use them. UK and EU law does not use the same labels. The Trade Marks Act 1994 and the EU Trade Mark Regulation refuse signs that are devoid of distinctive character, descriptive of the goods, or customary in the trade. In practice the results are similar, so the scale is a good way to think about a candidate name wherever you file.

The scale, with the textbook illustration for each step. Where a word sits depends on the goods: the same word can be generic for one product and arbitrary for another.
Category	What it means	Classic illustration	Protection
Generic	The common name for the thing itself	“Apple” for apples	None, ever
Descriptive	Directly describes a quality, purpose, feature or origin	“Creamy” for yoghurt	Only after it acquires distinctiveness through use
Suggestive	Hints at a quality, but the customer has to make a mental leap	“Coppertone” for sun lotion	From first use
Arbitrary	A real word with no connection to the goods	“Apple” for computers	From first use, and strong
Fanciful	An invented word	“Kodak” for cameras	From first use, and the strongest

Descriptive: protectable, but only later

A descriptive name is not barred forever. It can become registrable once it has acquired distinctiveness, which is called secondary meaning in the US. That happens when enough of the relevant public sees the word as identifying one business rather than describing a product. The EU and UK provisions allow this explicitly, and US law lets an applicant show it, usually with evidence of long and substantial use. The USPTO generally accepts five years of substantially exclusive and continuous use as prima facie evidence, though it can ask for more.

The catch is in the word later. During the years it takes to build that recognition, a competitor can use the same descriptive word, and you will struggle to stop them. A business that launches with a descriptive name is choosing to be unprotected for the period when it is most vulnerable.

The line between descriptive and suggestive

This line decides most arguments, and no definition settles it cleanly. The usual test asks how much imagination a customer needs to get from the word to the product. If the word tells you directly what the product is or does, it is descriptive. If you have to work it out, it is suggestive. Examiners and courts disagree at the margins, so treat any name close to the line as a risk rather than a safe choice.

One useful check is whether a competitor would naturally use the word to describe its own product. If they would, the name is probably descriptive, and a refusal or a weak registration is likely.

Generic is a destination, not just a starting point

A mark can also move left along the scale. If the public starts using a brand as the ordinary name for the product, it can become generic and lose protection. This is sometimes called genericide. The best-known US examples are well documented. “Aspirin” was held generic in the United States in Bayer Co. v. United Drug Co. (1921). “Thermos” was held to have become generic for vacuum flasks in King-Seeley Thermos Co. v. Aladdin Industries (1963). “Escalator” lost its registration in 1950. Brand owners who insist on “tissues” or “adhesive bandages” after their mark are guarding against this.

A recent twist: generic word plus .com

In United States Patent and Trademark Office v. Booking.com B.V. (2020), the US Supreme Court held that “generic.com” is not automatically generic. If consumers see the whole term as a brand, it can be registered. The decision turned on evidence of how consumers actually understood “Booking.com”. It does not mean adding .com to a descriptive word makes it distinctive. It means a business with substantial evidence of brand recognition can argue the point. The protection that results is narrow, because competitors remain free to use the generic word itself.

What this means when you brainstorm

Aim for suggestive or arbitrary. They are protectable from day one and still give customers something to hold on to. Fanciful names are the strongest but cost the most to explain.
Test against the goods, not in the abstract. Ask what the word means to a customer of this particular product. “Arbitrary” only exists relative to something.
Watch combined names. Two descriptive words together, such as “Fast Payroll”, are usually still descriptive. Adding a geographic term rarely helps either.
Remember the search problem. Descriptive and suggestive names crowd together. Many businesses in your trade will use similar words, which makes clearance searches noisier and conflicts more likely.

Questions

Can I register a descriptive name with a logo to get around the problem?

You can often register a stylised mark or logo that contains a descriptive word. The protection then comes from the design, not the word. It will not stop a competitor using the same word in a different style, which is usually the thing you actually wanted to stop.

Is a misspelt descriptive word distinctive?

Usually not. A phonetic misspelling such as “Kwik” for “quick” is generally treated as the word it imitates, because customers hear and understand it the same way. The spelling might help you get a domain. It rarely helps you get a trademark.

Does a registration settle the question?

No. A registration can be challenged later on the grounds that the mark should never have been registered, for example because it was descriptive, or because it has since become generic. A weak mark that got through examination is still a weak mark.

Published 2026-10-18. The cases named are cited as published decisions. Their facts are summarised, not reproduced. General guidance on how distinctiveness is assessed, not an opinion on any particular name.