Navigating Your Way to an Available Trademark

Navigating Your Way to an Available Trademark

Salton Sea by Oliver Dodd – CC BY SA

When you’re thinking about naming your company, what’s on your Must-Have list?

  1. Common English word.
  2. Memorable.
  3. Connected to your brand promise, differentiator or offering.
  4. Easy to pronounce and spell.
  5. Short.
  6. Available for trademark.

Seems reasonable—until you start checking to see which of your favorite name ideas are available to trademark. Unless you’ve tried naming a business in the last 5-10 years, you may not realize how barren the trademark landscape is. To put it simply, short, positive, common English names are largely no longer available in most trademark classes.

Last year, the Harvard Law Review published a study quantifying what we in the naming business have observed intuitively. In their article, “Are We Running Out of Trademarks?” the authors analyzed a number of factors and concluded: Yes, word-mark depletion is real, and it’s severe.


The Most Common, Positive Single Words Have Been Trademarked

Let’s look at the “common English word” criteria from the wish list above. To determine whether a word is common, the authors of the study looked at how many of the 1,000 most frequently used English words were registered as single-word trademarks. The result? 813, or more than 80%.

What about the other 187 words, you ask? Why not use those? Because you probably wouldn’t want them. They’re words like, “disease,” “killed,” “died,” “despite,” “drug,” “loss,” “older,” and so on.

When the frequently used word list is expanded to 86,408, the authors found that 74% of them had been claimed as a single-word trademark. In other words, when we speak conversational English, we’re saying someone’s trademark almost 3/4 of the time.


Who Will Find It Most Difficult to Register a Single-Word Trademark?

What about single-word trademarks within a particular class? US trademark law allows companies to claim identical marks if their goods and services are distinctly different. That’s why ACE hardware store and ACE bandages can co-exist as registered trademarks. When the authors analyzed single-word marks within International Classes, they found some of the busiest classes using more than half of the most frequently used 86,408 words.


Trademarks are Getting Longer

As we’ve seen, single-word common English trademarks are in short supply. To find trademark availability, companies are filing multi-syllabic and/or multi-word marks.

The above graph shows us that today, most filings that successfully register consist of more than one word. Whether one word or two, trademarked names are also trending toward more syllables—again, because most positive, common English words with fewer syllables are simply no longer available. In the graph below we see that most successfully registered names have between four and five syllables.

What accounts for the downward trend in the mean? As Herman Cain famously said, “I don’t have facts to back this up,” but the trend line seems to start about the time that neologisms were becoming popular. When you can make up any word, it can be short and monosyllabic. I’m guessing that a flood of short neologisms has had a significant effect on the mean.

We see the same downward trend in character count. But even so, the mean is a whopping 14 characters for successfully registered names.

It’s Even Worse than it Looks

I wanted to give you a broad-brush view of today’s trademark situation without getting too deep into the weeds. Suffice it to say that not only are trademarks being used up, the USPTO has become more stringent in denying marks that they deem likely to cause confusion with an existing registered name. It’s not enough to search an International Class to see if the name you want to use has been taken. You also need to consider the relatedness of the goods and services. Recently, the Trademark Trial and Appeal Board (TTAB) ruled that a cigar can’t have the same name as a wine, because they are often used together.

And it’s always been true that trademark examiners will give the boot to names that are similar but not identical. As the authors of the study note:

“… a registration for BLUE in Class 25, for apparel, would likely disallow another entity from registering in that class BLU, BLEU, BLUE MAN, and quite possibly even similar sounding marks such as BLOW as well.”

By now you may be thinking that neologisms are the way to go. But that would be a mistake. Launching with a word that means nothing to your audience will hobble your business. Your name would be easily ignored and less likely to be remembered because it carries no meaning and triggers no emotion. (See Brain Rules for Naming — #2)

On top of all the branding issues, there’s no guarantee that even a neologism will be available to trademark. The study’s authors write:

“Firms that choose neologisms generally prefer short, easily pronounceable, familiar-sounding, and reasonably euphonious terms. Our data indicate that this limited supply of new words is itself being depleted.”

Naming Strategies for Finding Available Trademarks

What’s a brander to do? You need a name. If you go to market without a trademark, you could open yourself up to myriad headaches down the road. Not only could you be infringing on someone else’s trademark, but another company could come along and register your name. If you wanted to fight for your common law rights to the name, it could cost tens of thousands of dollars in legal fees.

So be strategic about naming your business. Go into it with your eyes and mind wide open. Here are some tips.

  1. Understand that this is a business decision, not an emotional oneUnlike naming a child or pet—a completely emotional and subjective process—you’re creating a business asset. Stay objective. The most important factor in your brand name is that it communicate something appealing about your business. You don’t need to love it. (Although once you see how an effective brand name starts a story and creates opportunities, you may grow to love it!)
  2. Manage expectations. Help your team understand the challenging trademark landscape. Depending on your goods and services, you will probably not find an available name that hits every single criteria on their wish list. Explain #1 above.
  3. Be different. No, really. Be different. If your brand can differentiate itself in a way that no other company in your industry has, you can mine creative areas that nobody has been in before. Remember that personality can be a differentiator. Imagine the naming potential if you position your accounting company as the advocate who fiercely and relentlessly fights to save your clients money on taxes. You’d be naming in a field of mostly boring brand names. Your bold personality would stand out from your competition, and you’d have more opportunity to find an available name.
  4. Don’t set arbitrary goalposts. Pollywog was once contacted by an entrepreneur who wanted a name using an English word with five or fewer characters. Sure, there may be a few short names that haven’t been taken in his business space. But they probably wouldn’t have connected to anything appealing about his brand, and he probably wouldn’t have liked them. When it comes to the effectiveness of a brand name, character count is a fairly minor consideration. We put a lot more weight on how well a name connects to a brand promise or differentiator. Be open to longer names, because that’s where trademark availability is these days.
  5. Stretch creatively. Let’s just say it: The name you’d expect for any given new product is already gone. That’s why you need to come up with names that are completely unexpected, yet still appropriate. This requires creative leaps—thinking about your brand in many different ways. Explore, then explore some more. See our Five Essential Tools for Brainstorming Business Name Ideas.
  6. Work with an entrepreneurial trademark attorney. A good intellectual property attorney should do more than just protect you from risk. They should be your partner in trying to secure the name you want by being strategic in how they write the application.

Smarter Cars, Dumber Names

In Henry Ford’s day, brakes were brakes, and a steering wheel was a steering wheel. But not anymore. Now auto makers want their proprietary technology to seem superior to their competitors’, so they give it a brand name instead of labeling it generically. The Automobile Association of America argues that this practice is confusing to drivers and could actually be dangerous.

Should auto tech be branded? Maybe, maybe not, but the genie is out of the bottle now.

See: The names car companies use to describe their high-tech features sound like gibberish

When Rebranding Goes Wrong

Ad Age released its list of “11 Worst Name Changes of 2018,” many of which were attempts to correct an original name that was poorly conceived. Other companies jumped on the “shorter is better” bandwagon, proving once again that character count is not the most important consideration for a brand name.

Among those on the list:

WW — Formerly Weight Watchers. They went from three syllables to six and adopted a name that’s two thirds of World Wide Web and World Wrestling Entertainment. 

RTW Retailwinds — Formerly New York & Company. Is “RTW” an abbreviation for the one-word “Retailwinds?” Why is it used with the name? I’m confused.

M/H VCCP — Formerly Muhtayzik Hoffer, an agency that should know a thing or two about branding. Yes, the original name was problematic, but the shortened version—complete with the trendy slash—brings no meaning whatsoever to the brand.

VMLY&R — Formed by combining the former agency names of VML and Y&R. Yikes.

Ad Age had also included two names on its list that didn’t deserve to be on this Hall of Shame:

Tribune Publishing — After calling their Tribune Online Content unit “Tronc,” the media company ditched that silly name in favor of their rock-solid original brand. That’s a good call.

Capri Holdings — Michael Kors decided to rebrand after acquiring fashion powerhouses Jimmy Choo and Versace. The name “Capri” was selected because of the island’s three-rock formation, which was meant to symbolize the timeless stability of the three brands. Creating an evocative name was a good choice, so A for Effort on that. Problem is, the island’s trio of rock formations is not what it’s best known for. A brand’s connection to an evocative name should be obvious. This one, unfortunately, requires explanation.

Check out Trademark Bob’s take on this article, which gets into the hazards of adopting initials and acronyms as your brand name.


Clutch Highlights Pollywog in Annual Report of Global Leaders 2018

Pollywog has been working with brands in their formative stages since 2007, and we’ve always endeavored to produce nothing but the best work for our clients. To get some feedback on how we’re doing as a company, we created a profile on Clutch, a B2B ratings and reviews platform based in Washington, D.C.

Clutch analyzes businesses in a diverse range of industries, ranking them on their ability to deliver superior solutions to clients. They research social media presence, industry expertise, and former client reviews in their extensive evaluations. We’re proud to see how our company has stacked up against their analysis: Our comprehensive profile on Clutch is now ranked as one of the top naming agencies in their global report for 2018! And, another piece of exciting news: Pollywog is listed as a Clutch 1000 company, which is a list of the top 1000 firms on their platform.

While the awards and recognition are certainly nice, what we’re proudest of is our client reviews. Clutch interviews our former clients via telephone, gathering accounts from those who have had direct experience collaborating with us. We’re glad to hear that our passion for creating compelling, story-rich brand names has paid off. Here’s a sample of what our clients are saying:

“While their competitors made huge promises, Pollywog’s approach was both comprehensive and creative. They proposed a realistic plan that made efficient use of our time and yielded results. Their years of branding experience was also very comforting.” – COO of a High Performance Computing Company

“Don’t hesitate to call them. They produce great value and smart work that’s on budget and on time.” – Owner, McLean Properties, Inc.

 “They were committed to making sure our new name was the perfect fit for our business.” – Marketing Communications Manager, Fulcrum Health

 “They are very smart, clever, and show dedication to the missions they are working to support.” – Marketing & Communications Manager, Animal Humane Society

Because Pollywog’s ability to deliver is ranked so high among naming companies, we’re also featured on Clutch’s sister website, The Manifest. The Manifest is a site of guides to top service providers and industry trends. 

We’re grateful to the Clutch team for their research and recognition, to our former clients for their reviews of our work, and to all who have helped our company grow over the years. Our stellar rankings on Clutch and The Manifest motivate us to work even harder in the new year and deliver our best work to both new and returning customers.

Startup Growth Linked to Trademark

Of the many sites offering advice for aspiring entrepreneurs—including the venerable SBA—very few mention branding as a startup cost. Almost none advise new business owners to factor the cost of naming into their expenses. Maybe the authors of these pages believe that entrepreneurs can simply name their business by themselves.

But the the truth is, the days of easily creating a brand name—a name that links to an appealing brand promise or differentiator, uses natural words that customers can understand, and is available to trademark—are long over.

Many entrepreneurs create a name then jump into business with no regard to the possibility that they may be infringing on someone else’s trademark. And in reality, many businesses do co-exist with the same name, and many trademark owners fail to protect their mark. Perhaps it’s just too costly and time-consuming to do so, especially if your business name is one that’s easy for others to think up. ” (I feel sorry for the trademark owners of cliched names like “Cornerstone” and “Pinnacle.”)

But there’s another reason why entrepreneurs should do their due diligence and trademark their business name—because it helps them make more money.

Our friends at Trademark Bob highlighted a study in their blog today that entrepreneurs should pay close attention to.

The study found that a trademark filing is highly correlated with the ultimate success of an early entrepreneurship activity including employment and revenue growth. Firms that do not apply for a trademark registration in their initial years are unlikely to do so unless they experience employment growth. However, difference-in-differences analysis suggests sizable treatment effects, with firms making a trademark filing having substantially higher employment and greater revenue in the period following the first trademark filing.

You can read the whole study here.

It pays to trademark your name. Pollywog can help you create a name for your startup that’s custom-tailored to your offering, scores well on our 17-point evaluation and has a high likelihood for trademark registration.

Naming Mary Jane

“Cannabis Dispensary” by My 420 Tours CC BY-SA

The cannabis industry has had to clean up its intellectual property act now that it’s a legitimate product in some states. No, you can’t call a strain of marijuana “Gorilla Glue” or “Girl Scout Cookies” or “Skywalker OG”. But that doesn’t mean you have to give your product a lame name like Liiv™, Synr.g™ or Xscape.

The “Wild West” days of cannabis naming may be over, but there’s a lot of room for creativity with names. It would be nice to see these companies stretch a bit.

Here’s more on cannabis naming.

Pollywog is a naming company. We create story-rich names that draw people to brands. 612.326.4207