Trademarks must be distinctive

The most important function of a trademark is to distinguish a certain trader's goods and services on the market from similar goods and services of other traders. For this reason, the trademark is not allowed to just describe the goods or services it is used for. The mark must have a distinctive character. This is an absolute requirement for registering the mark.

Example: An Apple mark for apples or apple tartlets cannot be registered as such because the word “apple" merely describes what the products are: it refers to either apples or apple bakery. But an Apple mark for products like computers is distinctive because the word does not describe computers in any way.

Words describing a product or service must be freely available for everybody. It would be unfair on other traders to give a single entrepreneur an exclusive right to a word and mark that anyone in the trade should be free to use.

Example: It is important for apple growers and bakers to be able to use the word “apple" freely when describing their products and the product qualities. In contrast, computer manufacturers have no need to use the word “apple" when talking about their products.

Trademarks must not be merely descriptive

Trademark registration is not possible for words or word combinations that merely describe the product or service in terms of its

• kind (e.g. BOOTS for shoes)
• quality (e.g. GOOD or FAST for cleaning services)
• quantity (e.g. TEN)
• use (e.g. RAIN for clothes)
• price (e.g. AFFORDABLE)
• place of manufacture (e.g. SWEDEN)
• time of manufacture (e.g. 2020).

Marks that are non-distinctive in other ways

Certain marks cannot be registered because no one can be granted an exclusive right to them. For instance, commercial expressions that are widely used in the field cannot be trademarks. A good example is the word SALE. It would be unfair if one trader were given an exclusive right to the word SALE. The target group would not even take such a mark to be a trademark.

Assessment of distinctive character

We always assess the distinctive character of a trademark as a whole and separately in each case.

In the assessment, we consider the proposed trademark in combination with the goods or services it will be used for. In other words, we look into the relation between the trademark and the products.

Trademarks can include descriptive elements

A trademark can include a word describing the product, service or their qualities, or an otherwise non-distinctive word, if the mark also includes a distinctive element. The distinctive element can consist of another word or a figure.

Distinctiveness in different languages

We assess the distinctive character of words in Finnish, Swedish and English, and in some other common languages depending on the case. This means an English word merely describing the qualities of the product or service is also considered to lack distinctive character.

Distinctiveness of figurative marks

The requirement for distinctive character applies to all types of marks, including figurative marks. For instance, a mark consisting of a very simple geometric shape such as a triangle would not be able to distinguish the owner’s goods or services from those of other traders. Such a mark would probably not even be taken as a trademark.

Non-distinctive words combined with figurative elements

A non-distinctive word can be registered in combination with a distinctive figurative element. In that case, the mark as a whole has distinctive character in spite of the descriptive text included. In practice this means, for example, that competitors are allowed to use the same word but not the same combination.

A combination of a non-distinctive word and a figurative element can also lack distinctive character if it only consists of a simple shape or product image and a word describing the qualities of the products.

Distinctiveness through use

An originally non-distinctive trademark can become distinctive through use. The mark has acquired distinctive character when it has been used for so long and so widely that consumers no longer consider the word as a common expression but as a special symbol of the goods or services of a particular company.

The time needed for a mark to become distinctive depends totally on the case. Roughly speaking, it often takes years.

When applying for a trademark, you can show that your mark has acquired distinctive character by providing us with evidence called proof of use.