Before we dive into what trademark distinctiveness means, let’s first understand what a trademark is.

 

A trademark refers to any sign that possesses distinctiveness, which allows consumers to identify and distinguish the source of goods or services.

This can include words, graphics, symbols, colors, shapes, motion, holograms, sounds, or a combination of any of these elements.
 

What Is Trademark Distinctiveness?

As mentioned earlier, a trademark refers to any sign that possesses distinctiveness—but what exactly does that mean?

At its core, a trademark is meant to distinguish and identify the source of goods or services among different providers.

In other words, your mark must be able to indicate where your products or services come from, clearly differentiate them from those of competitors, and allow consumers to recognize and remember your brand.

Brand Naming Tips for Business Owners – Inherent Distinctiveness Is Key

Trademark distinctiveness falls into two categories: inherent distinctiveness and acquired distinctiveness.

Put simply, inherent means the name is naturally distinctive, while acquired means the name gains distinctiveness over time through use.

Of course, the easiest and most straightforward path is inherent distinctiveness!

So when choosing a name for your brand, remember: inherent distinctiveness is crucial.

Here are three proven naming strategies that will help you create a trademark with strong inherent distinctiveness—you won’t go wrong with these!

a. Fancifulness: Refers to marks created through intellectual originality, not derived from existing vocabulary or objects, and without any specific inherent meaning. To consumers, they do not convey any information about the goods or services, but merely serve to indicate and distinguish the source. Therefore, they possess the strongest level of distinctiveness.

Example: “GOOGLE” used for search engine services; “   ” used for automobile products.

b. Arbitrary: Consists of existing words or objects, but completely unrelated to the designated goods or services, including their quality, function, or other characteristics. These marks do not convey product-related information and are not descriptive. Consumers can recognize them as source-identifying signs. Competitors in the same industry do not need to use such unrelated words or objects in trade, so they are considered source identifiers.

Example: “APPLE” used for computer and mobile phone products; “   ” used for clothing products.

c. Suggestive: Uses implicit or metaphorical means to suggest the quality, function, or other relevant ingredients or features of the product or service. These marks are easier for consumers to remember and are not essential or commonly used by competitors to describe their goods. Suggestive marks differ from directly descriptive marks; consumers need a certain degree of imagination, thought, feeling, or reasoning to understand the connection between the mark and the product.

Example: “一匙靈” used for laundry detergent products; “靠得住” used for sanitary napkin products; “快譯通” used for electronic dictionary products.

 

Trademark Distinctiveness Examination Guidelines – Acquired Distinctiveness

After learning about inherently distinctive naming methods, let’s now take a look at acquired distinctiveness.

Business owners may ask:

“Even though my brand name isn’t inherently distinctive, I’ve been operating for a long time and customers already recognize my brand—I don’t want to change it.”

So how can a brand name that lacks inherent distinctiveness—and is not immediately recognizable to consumers—still successfully obtain trademark protection?

According to the Trademark Distinctiveness Examination Guidelines,

a mark that originally lacks distinctiveness may still acquire it through the submission of evidence of use, including sales performance, duration of use, and brand awareness.

If consumers have come to recognize the mark as an indication of the source through prolonged and widespread use, it may be considered to have acquired distinctiveness.

This is often referred to as the “Three Highs”:

 • High sales revenue

 • High advertising expenditure

 • High brand recognition）

In the trademark application process, whether the mark is distinctive is an important point of examination. The following are examples of situations where a mark may lack distinctiveness:
 

1. Self-promoting terms:Refers to whether the trademark includes exaggerated or self-promotional expressions, which usually cannot serve as the main identifying element of a trademark.

For example: “XX Master,” “Taiwan’s No. 1” — terms that claim to be the top are not acceptable.

 

2. Description of service method/form: Refers to whether the trademark merely describes the way a product or service is provided, lacking uniqueness, which may cause it to be non-distinctive.

For example: “Kumamoto Ramen” indicates origin or flavor; “Since 1994” indicates the founding year of the brand; and commonly used terms by many businesses like “Authentic,” “Marbled,” or “Gold Medal Round” are also not acceptable.
 

3. Geographic names generally do not have distinctiveness.

For example:“Fruit Park,” “Lishan Fruit” used for fresh fruit products.

 

4. Combination of product and name/title:  If the trademark simply combines the product name with a descriptive title and lacks uniqueness, it may not be distinctive.

For example: “Li’s Beef Noodles,” “Wang’s Rice Dumplings” — these would not be acceptable.
 

 5. Descriptive and non-distinctive terms are often used in combination with product or service names.                                         

For example, trademarks may include combinations such as “quality + location + product name” (e.g., Premium Longtan Tea), “quality + production method + product name” (e.g., Classic Handmade Chocolate, Natural Handmade Soap), or “ingredient + product name” (e.g., Herbal Cream).

These kinds of trademarks are generally considered descriptive of the goods or services and therefore lack distinctiveness, and do not require a disclaimer of non-exclusivity.

 

※ What is a trademark disclaimer of non-exclusivity?

Put simply, “non-exclusive” means that everyone is allowed to use it.

For instance, in the food and beverage industry, terms like “big portion and delicious,” or common product names such as Oolong Tea, Milk Tea, Cake, Coffee, etc., are generic terms and are considered non-exclusive.

 

In summary, the examination of trademark distinctiveness is a crucial process to ensure that a trademark can uniquely identify itself in the market and distinguish itself from others.

When naming a brand, business owners are advised to start with distinctive terms in the design process to avoid needing a disclaimer of non-exclusivity later on.

 

If “everyone can use it,” it’ll be harder to stand out in marketing and SEO, and keywords can easily be hijacked by competitors.

Worse yet, you won’t be able to take legal action for trademark infringement, because the term is merely descriptive of the goods or services.

 

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