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Informational Perhaps, But Not a Trademark!

Recent Wal-Mart case before Trademark Trial and Appeal Board shows registering informational slogans remains a difficult endeavor

One area of trademark law that continuously puzzles people is the tension between having a word or phrase associated with a product or service that is “informational” in that it immediately conveys to the consumer exactly what the product or service is, verses a word or phrase that may be more suggestive, arbitrary, or fanciful. The former does not acquire trademark rights and is not registerable if it is descriptive, while the latter will have an easier time acquiring trademark rights and is more likely to be registerable. Those in charge of marketing or advertising a product often tend to prefer the former because it means there is little explanation required to the customer as to what the product or service is, making marketing or advertising simpler because there is no explanation required. However, those in charge of building a brand understand that descriptive, generic, or substantially informational (when it comes to slogans) cannot acquire trademark rights, and therefore are virtually impossible to build into a protectable brand.

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