Why Trademark Distinctiveness Matters: The Core Requirement for Trademark Registrability

The Context

Brand names play a central role in how customers recognise a business. But not every name can be protected. One of the most common issues companies face is choosing a name that feels intuitive, only to discover that it cannot be registered as a trademark.

The reason often comes down to one criterion. Distinctiveness, the legal term for defining what is unique or not.

A trademark should identify a commercial source. It should help consumers understand who is behind the product or service. If the name simply describes what the business offers, it cannot perform this function.

Distinctiveness is one of the essential requirements for trademark registrability in all major trademark systems.

Why Descriptive Names Are a Common Problem

Many names that businesses choose fall into the descriptive names category. These names typically feel relatively clear and straightforward because they explain what the company does. But these names rarely qualify for trademark protection.

Examples of rejected names in the EUIPO include:

• LLM for computers and software, as an English speaking specialist in computer tech would understand “LLM” to mean a large language model.

• GOOD THINGS TAKE TIME for clothing. Consumers would view it as a promotional slogan about quality, not as a source indicator. It praises the goods and is not considered a distinctive name.

• BIOLOGICA, for cosmetics and dietary supplements. Consumers in several EU languages would see it as a descriptive term meaning biological or natural. Since it only describes the nature and qualities of the goods and services, it lacks distinctiveness and cannot function as a trademark.

A trademark grants exclusive rights to a name, and exclusivity cannot extend to terms that must remain available to everyone. If a word belongs to the public, it cannot be monopolised by one business.

What Distinctiveness Really Means

A distinctive trademark does not need to be unusual. It simply needs to be capable of indicating the source of goods or services. Under EUIPO practice, distinctiveness operates on a sliding scale, where a sign may have no distinctiveness, normal distinctiveness or fall somewhere in between. The key requirement is that consumers can recognise the name as pointing to one business, not the category as a whole.

Descriptive names or names that are too generic cannot do this job. As a result, they face refusal during the application process.

Why Early Assessment Matters, Business Implications of a Descriptive Name

Many businesses file trademark applications without evaluating distinctiveness first. This leads to higher rejection rates and unnecessary costs. Self-filed applications are significantly more likely to fail because they often overlook the legal thresholds that determine whether a name can be protected.

A trademark distinctiveness assessment at the outset can prevent:

• unnecessary filing fees

• delays caused by objections

• the need for rebranding after investment in design and marketing

• long-term uncertainty about enforceability

A simple legal review can confirm whether a brand name has realistic registrability potential before resources are committed.

Finally, it’s not just a legal or trademark issue – it hits your marketing hard too. Descriptive names usually face far more competition, which means your marketing budget will need to be significantly higher to achieve the same impact.

What This Means Going Forward

Descriptive names can help with search intent because people naturally look for the words they already associate with a product. But the same familiarity also makes these names highly competitive. When a term is widely used across an industry, it becomes harder and more expensive to stand out. Paid visibility often costs more, and organic ranking requires more effort because you are competing against everyone else using the same words.

Distinctive names work differently. They do not rely on crowded keywords, so the marketing effort is not spent fighting for space in saturated search categories. A unique name gives you clearer differentiation, stronger trademark protection, and often more efficient marketing over time because you own the term you are building.

If the goal is long-term brand equity, choosing a distinctive name gives you a stronger and more defensible foundation.

Disclaimer:

This article is for informational purposes only and does not constitute legal advice. If your company would like a distinctiveness assessment or guidance on developing a strong brand protection strategy, please contact us at Abrande.

Sources:

EUIPO Trademark Guidelines: Distinctiveness
https://guidelines.euipo.europa.eu/2302857/1980437/trade-mark-guidelines/3-2-2-1-what-is-distinctiveness-

LLM:
https://euipo.europa.eu/eSearch/#details/trademarks/018970292

GOOD THINGS TAKE TIME:
https://euipo.europa.eu/eSearch/#details/trademarks/018974814

BIOLOGICA:
https://euipo.europa.eu/eSearch/#details/trademarks/011801198