What Elements of Your Brand Can and Can't Be Trademarked – and Why
Building a strong, recognizable brand begins with protecting the key elements that make it stand out. Trademarks secure your brand’s identity, prevent imitation, and provide the confidence to grow your business knowing that your unique assets are safeguarded. However, trademark law can be complex, and many entrepreneurs are unsure about what can—and can’t—be trademarked.
Business owners often ask us which brand elements they should protect—whether it’s their business name, logo, tagline, or even the colors that define their brand. Understanding what can be trademarked, what can’t, and why, is crucial to building a solid legal foundation. Trademarks, copyrights, and patents each protect different aspects of intellectual property, and knowing the distinctions between them helps ensure your business is fully protected.
What Can Be Trademarked
Let’s start with the basics– trademarks protect elements that identify and distinguish the goods or services your business provides. If your brand element makes people think of you, that’s a good indicator it’s something worth protecting.
A trademark should be distinctive and help set your brand apart from the competition. Here’s a closer look at some of the key elements you can trademark:
Brand name: Your business name is more than just a label—it's your identity in the marketplace. Registering it for a trademark ensures that it is protected from competitors. When someone hears “Nike,” they immediately think of a well-established brand known for athletic gear—not just any athletic shoes. By securing your brand name, you ensure it stays uniquely yours.
Product or service names: If you’ve created distinct names for the products or services your business offers, these can be trademarked as well. This helps your audience recognize that a specific product or service is coming from you, ensuring that your unique offerings stand apart from others in the market.
Slogan or tagline: A catchy slogan is an essential tool for reinforcing your brand’s identity in the minds of your customers. Think of an iconic phrase like “Just Do It” —this tagline is more than just words; it has become inseparable from its brand.
Logo: Your logo is often the first impression people have of your brand, and securing a trademark for it protects that crucial recognition. Whether it's your main logo or a secondary version, a trademark prevents others from using a design that could confuse your customers, keeping your brand identity clear and distinct.
Color palette: While you can’t trademark colors in general, you can protect a specific color or combination of colors if it’s strongly associated with your brand. Consider Tiffany & Co.’s signature robin’s-egg blue, the red soles of Christian Louboutin shoes, or UPS’s unique brown. If your brand has a signature color that customers instantly identify with you, securing it as a trademark can offer valuable protection.
These trademarkable elements help consumers recognize your brand’s offerings and ensure they aren’t misled by lookalike brands trying to capitalize on your success.
What Can’t Be Trademarked—and Why
As important as it is to know what can be trademarked, it’s equally essential to understand what cannot be trademarked. This is where some confusion often arises, especially when brand elements are incorrectly thought to be trademark-able.
Let’s clear up some common misconceptions:
Generic names or phrases: Some elements cannot be trademarked because they are too generic or don’t serve as distinct identifiers of your business. For instance, broad terms like ‘restaurant’ or ‘shampoo’ can’t be trademarked. Trademark law only protects specific, distinctive terms that clearly set your business apart.
Physical products: While the name of your product might be trademarkable, the physical product itself falls under patent law.
Inventions: Similarly, inventions are covered by patents, not trademarks. Patents protect the unique functionality or design of a product, so if your business relies on a specific tool or product you’ve developed, a patent is the best way to protect it.
Original works of authorship: Things like written content, artwork, photography, or music are protected under copyright law, not trademark law. Copyrights prevent unauthorized reproduction or distribution of creative works. If you're an artist or writer, copyright is the best way to protect your creations.
Non-distinguishable elements: Trademarks need to be unique identifiers that don’t closely resemble existing registered trademarks in the same field or industry. If your brand name or logo is too similar to another trademark, it can’t be registered, as this might confuse customers. This is one of the reasons it’s so crucial to perform a thorough trademark clearance search before investing in branding materials.
Knowing these distinctions is key to protecting the different elements of your brand in the right way—and to avoiding wasted time or resources on applications that don’t fall under trademark protection.
The Spectrum of Distinctiveness
Not all trademarks are created equal. They fall on a “spectrum of distinctiveness,” which ranges from weak to strong based on how unique or descriptive they are.
Here’s a breakdown of the key categories:
Generic: These terms describe the general category of a product or service and cannot be trademarked. For example, “Bicycle” for a bike brand is too broad to be protected.
Descriptive: These terms directly explain a product’s qualities, making them weak trademarks. They can gain protection only if they develop a secondary meaning—when customers come to associate the term with a specific brand. For example, “Best Tasting Coffee” describes the product but isn’t unique enough to be trademarked unless customers identify it with a particular brand.
Suggestive: Suggestive marks hint at a product’s qualities without directly describing them, requiring some creativity. These trademarks are stronger because they spark imagination. For example, “Greyhound” for a bus service suggests speed without explicitly describing the service.
Arbitrary: Arbitrary marks use common words unrelated to the product or service they represent. “Apple” for computers is an example—there’s no link to the fruit, which makes it distinctive.
Fanciful: Fanciful marks are entirely made-up words, like “Kodak” or “Xerox.” These are the easiest to trademark because they are inherently unique and distinctive.
When choosing what to trademark, it’s best to aim for elements that are suggestive, arbitrary, or fanciful, as they have the strongest potential for protection.
What Makes an Element a Good Candidate for Trademark Registration?
So, how can you tell if your brand’s elements are good candidates for trademark protection?
Here are a few key questions to consider:
Is it unique and distinguishable? If your brand name, logo, or tagline doesn’t stand out from others in your industry, it may not be eligible for trademark registration.
Does it represent your brand in a memorable way? Strong trademarks are those that customers immediately associate with your business.
Is it an integral part of your brand identity? If an element is central to how customers recognize your brand, it’s likely a good candidate for a trademark.
Answering “yes” to these questions is a positive sign that your element might qualify for trademark protection.
Why Work with a Trademark Attorney?
Trademark law can be complicated, and navigating it alone often leads to costly mistakes. Working with a trademark attorney ensures your applications are handled accurately and strategically from the start, increasing your chances of successful registration.
A trademark attorney adds value by conducting a comprehensive clearance search, to make sure your chosen mark is unique and won’t conflict with existing trademarks, protecting you from potential legal disputes. They will also help you craft a distinctive trademark with a strong chance of registration, handle the application process, and resolve any issues that arise.
Investing in an attorney is an investment in your brand’s future. With their expertise, you can focus on growing your business, knowing that your brand is protected from infringement.
Secure Your Brand Today
In a crowded market, protecting your brand elements is a key step in standing out, building recognition, and preventing competitors from capitalizing on your hard work. Securing your brand with a strong trademark gives you the confidence to grow, expand, and invest in your business without the fear of losing what makes it unique.
If you’re ready to secure your brand’s identity, Mika Mooney Law is here to help. Schedule a free discovery call today to see how protecting your key brand elements can empower your business to thrive. Together, we can make sure you have the legal foundation you need to focus on what matters most—growing your brand.
Disclaimer: This post is for legal education purposes only and should not be considered legal advice. No attorney-client relationship has been formed. To the extent this post constitutes attorney advertising, past results do not guarantee similar outcomes.
