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What terms can't be trademarked?

Written by Jan Buza

Co-founder of Trama

Terms that cannot be trademarked fall into two broad categories: those that lack distinctiveness and those that are excluded for policy reasons.

Lacking distinctiveness covers generic terms (the common name for the goods or services: "Phone" for a phone), descriptive terms (words that merely describe a characteristic of the goods: "Fresh" for food), and terms that have become customary in the trade.

Policy exclusions cover terms that are contrary to public policy or accepted principles of morality, terms that are deceptive, official symbols such as national flags and state emblems, and protected geographical indications used outside their designated category.

In some jurisdictions, terms that are purely surnames face a higher bar and may require evidence of acquired distinctiveness before they can be registered.

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