Unregistrable
Life Imitates ®
As trademark professionals, we’ve been taught that inherently distinctive marks are “strong,” while nondistinctive terms are weak. So we counsel clients to avoid words that are descriptive, laudatory, names of places, and surnames. These, we advise, don’t make as good brand names as coined or arbitrary terms, which we esteem for their instant clout and potency.
Of course, and to our great collective cultural good fortune, companies don’t always follow our advice, and their “weak” brands don’t necessarily settle for second class status. Who could dispute the overwhelming fame of “McDonald’s,” which though “primarily merely a surname” has ascended to the Mount Olympus of brands? Who would argue that Saturday Night Live, merely descriptive of a show that airs live on Saturday nights, doesn’t dominate the realm of trademarks, just as it has reigned over its timeslot for 30 years? And while some may take issue with its editorial slant, few would doubt that the New York Times has great heft as the brand name for “the paper of record.”
But none of these real-world bastions of trademark strength rival the power and versatility of the celluloid world’s heavyweight-champion brand name. I’m referring of course to “Acme,” the brand of choice for Wile E. Coyote, Genius, in his epic quest against The Roadrunner. While we in the physical marketplace dismiss Acme as a tepid and diluted laudatory mark, in the lonesome desert byways of the Warner Bros. universe, the Acme brand stands supreme. It is a strong brand, a symbol of quality and reliability that old Wiley relies on time and again for practically anything and everything. When it came to munitions of any sort, Acme had it covered. But its scope extended well beyond TNT and gunpowder. Acme also provided Wiley with an impressive array of destructive items, such as anvils, earthquake pills, explosive tennis balls, and giant mouse traps, to name only a few. Acme was a brand with, as we trademark lawyers like to say, a virtually limitless zone of natural expansion. And in the zany, two-dimensional Technicolor reality, where the laws of gravity and physics routinely were suspended, the laws of trademarks were gently relaxed as well. So while Mr. Coyote experienced failure after failure with his Acme purchases, the brand never tarnished, there were no product-liability suits, and Wiley always came back for more. While things may have been simpler on the Warner Bros. drawing board, the moral of the Acme brand holds true. Even a brand with low inherent status like a surname, place name, laudatory word, or descriptor can, through pluck, perseverance, and good fortune, eventually acquire levels of distinctiveness that can rival or surpass arbitrary and even coined names. So the motto for brands like McDonald’s, SNL, and the New York Times can be “To Infinity and Beyond,” not “That’s All Folks.”