Generic Terms Are Not – and Can Never Be – Trademarks

IP and Technology Licensing Attorney Howard ZaharoffBy: Howard Zaharoff

Suppose you (or your client) is in the cupcake business and decides to purchase and brand the domain name “cupcakes.com.” Can this be done?

I don’t mean, could you buy the URL? (The answer is “no”: it’s apparently owned by NA Media and used as a portal for dessert, food, baking and related sites.) My question is: could you or your client claim “cupcakes.com” as a service mark and thereby prevent others from using anything confusingly similar in connection with their own cupcake businesses?

In short, if you use a word or phrase generically in identifiers for your products or services, not only can’t you claim that word itself as a proprietary brand name, but you do no better by adding an indistinct suffix like dot-com. So for anyone hoping to appropriate a generic term as its trademark or service mark by adding dot-com (or other relatively indistinct supplementary words), it’s back to the drawing board to find a mark distinctive enough to identify a viable business.

To learn more, please see the full article.

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