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What is distinctiveness?

Written by Jan Buza

Co-founder of Trama

Distinctiveness refers to a mark's capacity to identify the goods or services of one business and distinguish them from those of others. It is one of the two prerequisites for trademark registration.

A mark that is generic or merely descriptive of the goods or services it covers lacks distinctiveness and will be refused. The more creative or arbitrary the mark, the stronger its inherent distinctiveness. Invented words, words used in an unexpected context, or combinations of elements that create a unique overall impression all tend to score well on distinctiveness.

Where inherent distinctiveness is weak, it can sometimes be acquired through long and extensive use in commerce, provided the applicant can demonstrate that consumers associate the mark with a single commercial source.

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