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Developments in the Law of Trademarks and In the twelfth and thirteenth centuries, trade took place at annual fairs and Seventh Circuit held in that trademark rights arise upon use bitcoin price technical analysis for 1132015failing bulls a mark affixed to Yet, despite judicial, legislative and administrative efforts to bring lega.
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A descriptive mark, derived from a feature of the product or service sold, only qualifies for protection after the mark has acquired source significance, i. A suggestive trademark, which indirectly invokes qualities of the product or service, is protected without evidence of source significance.
Courts often struggle to distinguish between suggestive and descriptive marks. The effort would nevertheless be reasonable if the differences between suggestive and descriptive marks justified their disparate legal treatment. But in light of cognitive and historical research into language change, protecting a suggestive mark without evidence of source significance may not be warranted. In fact, trademark law erroneously inflates the difference between suggestive and descriptive marks.
Linguistic analysis reveals an inconsistency between how trademark doctrine treats suggestive and descriptive trademarks and how consumers likely process them. Suggestive and descriptive marks are not so dissimilar as to justify different treatment. Instead, they likely influence consumers in similar ways. As a result, trademark law should reposition the line between descriptive and suggestive trademarks. A suggestive mark, like a descriptive mark, should be protected only upon a showing that the mark has developed source significance in the minds of consumers.
Trademark Protection Along the Abercrombie Spectrum Motivations for Semantic Shift: Updating Language and Managing Ambiguity Regularity in Semantic Shift: Distinguishing Polysemy from Homonymy Linguistics and Trademark Communication The Natural Homonymy of Arbitrary Trademarks Arbitrary Marks Are Inherently Distinctive Descriptive Marks Lack Inherent Distinctiveness Suggestive Marks and Cognitive Free Riding Resetting the Inherent Distinctiveness Line The person or firm may be unknown to the consumer.
Suggestive marks are treated as inherently distinctive upon first use, id. Even if the firm proves its descriptive mark has acquired trademark meaning, courts still presume the mark is weak. Some courts also presume that a suggestive mark is strong. SKG Studio, F. But see Star Indus. Oak Grove Smokehouse, Inc. The labels are more advisory than definitional, more like guidelines than pigeonholes.
Sleekcraft Boats, F. In other words, the suggestive—descriptive line is justifiable if consumers are in fact likely to perceive a suggestive mark as inherently source signifying. The creation of trademark meaning often involves adding a new sense to an existing word. Most word marks, including suggestive and descriptive marks, appropriate pre-existing words to bear source-signifying meaning. This Article marshals etymological,23 theoretical, and cognitive literatures on semantic shift—the way words add and lose meaning over time24—to argue that a suggestive mark is much more like a descriptive mark than the law currently recognizes.
The suggestive—descriptive distinction is thus illusory at best. A term is descriptive if it forthwith conveys an immediate idea of the ingredients, qualities or characteristics of the goods.
Semantic shift research explains how words bitcoin price technical analysis for 1132015failing bulls multiple related meanings confer processing advantages that make it easier for readers and listeners to slide from one meaning to another. Readers and listeners process words with multiple related meanings more quickly and more efficiently than words with multiple unrelated meanings, or with only a single meaning. In light of these findings, this Article argues that the current line between suggestive and descriptive marks is incorrectly drawn.
This Article proceeds in three Parts. Those critiques fail to recognize how initial consumer perception of the connection between different meanings of a word shapes how trademark meaning is accessed, 25 See, e. Suggestive marks are instead metaphorically related to the good or service sold, like using GLEEM to sell toothpaste indirectly invokes the bright, shiny quality one could expect from thoroughly cleaned teeth.
These relationships are discussed more fully in Part IV, infra. To fill this gap, this Article looks to semantic shift research to understand how the connection between words cabins the communicative capacity of a mark and sets a baseline for the development of source significance. This Article is the first to apply semantic shift research to analyze how the perceived connection between descriptive, suggestive, and arbitrary marks and the products associated with those marks can shape consumer perception.
Part IV applies those linguistic accounts to provide a limited defense of the Abercrombie spectrum, and to critique the suggestive—descriptive line in trademark law. In many respects, the Abercrombie spectrum properly sorts trademarks to reflect processing advantages identified in the semantic shift literature. But the legal distinction between suggestive and descriptive marks ignores the similarities between metonymic and metaphoric polysemy.
Both descriptive and suggestive marks have a polysemous relationship with the good or service sold. Both marks thus provide processing advantages that reduce cognitive workload compared to other categories of trademarks.
In light of this insight, the stark divide between suggestive and descriptive trademarks is not justified. Linguistics—the study of symbols and their meanings—has made limited inroads in the analysis of trademark law and policy, but in subfields other than semantic shift. The economic justification also ostensibly provides the normative basis for the suggestive—descriptive line. On the other hand, descriptive marks are not protectable unless the mark owner can provide evidence of source significance or secondary meaning, and even then are presumed to be weaker than other trademarks.
Trademark theory assumes that a descriptive term fails, on first use, to distinguish itself from the product it brands because of the relatively 32 Trademark law embraces at least two categories of normative justifications that are somewhat in tension with one another: For a description of the tension between these normative bases for trademark bitcoin price technical analysis for 1132015failing bulls, see, for example, Robert G.
But see Mark P. Furthermore, selecting a descriptive mark may provide the mark owner with a troubling advantage over competitors. Thus a mark owner cannot secure protection in a descriptive mark unless there is evidence that the mark has acquired source significance in the eyes of consumers.
