What kind of trademark are these names?

[breakaway]

I was looking at the strengths of certain criteria for trademarks. Assume they are not famous.
Would something like "Hello Kitty" be considered suggestive or descriptive?
What about "Sex and the City"?
Or "Desperate Housewives"?

 

[The Occultist]

You're asking the wrong question. Because they ARE famous, those marks will hold more weight, and significantly increase the potential for the mark holder to claim that you would be diluting their mark by your use of the mark.

Do you have a specific question for us? If not, you're not going to find much help here.

 

[JETX]

I was looking at the strengths of certain criteria for trademarks. Assume they are not famous.
Would something like "Hello Kitty" be considered suggestive or descriptive?
What about "Sex and the City"?
Or "Desperate Housewives"?

We don't do homework.

 

[quincy]

I am a little unsure what you are asking here, too, breakaway.

Like TheOcculist said, it is because "Hello Kitty" and "Desperate Housewife" marks have become famous that they are given the most legal protection under trademark law.

A trademark is originally awarded the most trademark protection because it is unique or creative (say, through the use of made-up words like Kodak or when words are used out of context like Time magazine) - but a trademark that has become well-known and connected in the public's mind with a product or service can gain the most legal protection under the trademark law over time (like "Ben and Jerry's").

Common or ordinary words ("Sam's Pet Store") or descriptive words ("Rapid Tire Change"), or trademarks that use first or last names ("Pete's Diner") are generally awarded the least protection, unless or until they become well-known ("Dunkin' Doughnuts", "Speedy Printing", "McDonald's").

When words are used out of context or are an unexpected combination of words, these are called "arbitrary marks" ("Milky Way" or "Apple Computers"). Words that suggest what the product or service does are called "suggestive marks" ("SlimFast"). And words that have become connected with a product or service over time are said to have acquired a "secondary meaning" ("Borders").

So, I guess I would say that "Desperate Housewives" is descriptive and "Hello Kitty" is arbitrary and "Sex and the City" is. . . . . . unsure. Perhaps suggestive.

So, does that answer whatever question it is you had?

 

[breakaway]

thanks a lot for the help Quincy

well the quesiton arouse because i was thinking of a name for a toy product and i was looking at the definitions of trademarks and it was hard for me to tell what category something would fit under so I used examples to see if someone could tell.

In one example, I'm planning on making a new toy lizard. It's basically just a cute plastic animal lizard that can move around with wheels underneath. I wanted to name it something like "Hug My Lizard". But I can't figure out if that would be descriptive, suggestive, or arbitrary.

I guess what I'm scared of is if other companies could start making things called "hug my lizard" and claim that it's merely descriptive. Like they could make their own toys and call it "hug my lizard" or alter it very slightly and call it "hug my gecko" or "snuggle my lizard". My side of the argument would be that it is not a common phrase, and thus I "invented" it, so other people who use it would be infringing.

 

[quincy]

You should probably wait for others to post, as I am not 100% sure on this, but:

"Hug My Lizard" seems to me to be arbitrary, because most people don't think that lizard and hug go together (although when I was little I had a pet newt that I sort of hugged at times - he didn't like it much, though).

"Huggable Lizard" would be descriptive, as it describes what the lizard is.

And "A Lizard that Hugs" would be suggestive, because it tells what the lizard does.

And "Lizhugard" (which you can steal if you wish ) would be a made-up word like "Kodak".

I think someone might have a difficult time with trademarking safely or producing a product called "Hug My Gecko" if you had already trademarked "Hug My Lizard", because their product would cause consumer confusion and therefore infringe on your mark. "Snuggle My Lizard" would probably be considered infringement on your mark, as well.

Again, you should probably wait for the trademark experts to chime in with their analyses.

 

[breakaway]

If a phrase is basically not common, it can be trademarked?

 

[divgradcurl]

If a phrase is basically not common, it can be trademarked?

You don't just "trademark" things. Trademark rights arise through consistent use of a phrase or logo or word to identify a product or service in commerce. Even a very common phrase can acquire trademark rights, in certain circumstances. But the key is use of the phrase to identify a product of service.

You can register a trademark through the USPTO to acquire certain addition rights, but even with a registration, you don't have any rights to the mark until you consistent use the mark to identify a good or service in commerce.

 

[breakaway]

divgradcurl, thanks for the explanation. Do you have any insight into my question of naming a toy "Hug My Lizard" in identifying in commerce a toy lizard? Would you consider that stronger than merely "descriptive" in trademarking?

Qunicy, thanks for your reply again. I agree with everything you said except the suggestive example. Suggestive is supposed to only allude.

I can see a flaw right now of looking at trademarks only in terms of that spectrum. A phrase can be more than one category and may even skip over one (suggestive).

 

[divgradcurl]

divgradcurl, thanks for the explanation. Do you have any insight into my question of naming a toy "Hug My Lizard" in identifying in commerce a toy lizard? Would you consider that stronger than merely "descriptive" in trademarking?

I am not really sure what you are asking. When you use the term "descriptive," for example, it means different things depending on what you are talking about. A purely descriptive mark is unlikely to garner rights in the first place. If you have already established trademark rights, whether the trademark is descriptive or not can help determine the breadth of scope of the trademark rights. And whether or not a mark is descriptive or not can determine whether or not a mark is registrable -- which is a different question from whether or not it is enforceable. The body of marks that can potentially be enforced is broader than the body of marks that can be registered, for example.

Could your idea acquire trademark rights? Sure. But to determine the scope of those rights, and the enforceability of those rights, you would need to look at what other marks are already out there, what exactly you are trying to do, and current caselaw in your jurisdiction.