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Distinctiveness
Your brand must stand out in the market, and cannot describe your product. This is a requirement for a trademark to be registered, and is called distinctive character.
What is meant by distinctiveness?
Trademarks serve as a guarantee that the goods and services come from one particular manufacturer or supplier. It is therefore a requirement that the trademark enable the customer to identify the product in a purchasing situation.
You are therefore not able to register a completely general advertising statement such as "WE MAKE THE JOB CHEAPER", or a simple figure that will only be perceived as decoration on a product. Such a slogan or such a figure will not be perceived as a guarantee that the goods or services come from one particular manufacturer or supplier, and therefore lack distinctive character.
Descriptive marks
The Trademarks Act also prevents the registration of descriptive marks. This includes marks which, for example, describe the nature, properties, purpose or place of production of the products.
The reason why descriptive marks cannot be registered is twofold. Firstly, descriptive marks will only be perceived as information about the products and not as one provider's characteristic, and therefore they lack distinctive character. It would also be unreasonable for others if someone were given a monopoly on a word that is purely descriptive. If, for example, one coffee producer had obtained exclusive rights to the word "coffee", this would be unfair to other coffee producers.
Distinctive character for different trademark types
Basically, all kinds of signs can be registered as trademarks. Some examples are:
- word
- logos
- Figurative marks
- packaging
- colors
- audio and multimedia sequences
The distinctiveness assessment is the same for all trademark types – that the trademark must stand out in the market, and not describe the products.
The type of brand can influence the perception of distinctiveness
Although the distinctiveness assessment is basically the same for all trademark types, the trademark type will still have an impact on whether the trademark will be perceived as distinctive.
It is possible to register a pure color or a combination of several colors as a trademark. For example, in theory, it is possible to get an exclusive right to completely pink beer cans. However, consumers are not used to perceiving colors as trademarks, and the color will only be perceived as an aesthetic choice, and not as someone's special characteristic. In order to obtain exclusive rights to a color trademark, it must usually be documented that you have incorporated the color as your special characteristic by use.
A word or a logo, on the other hand, is easier to get registered, because the consumer is used to perceiving words and logos as trademarks.
Examples of distinctive character
Below are some examples of trademarks with and without distinctive character. This can provide an illustration of what the Norwegian Industrial Property Office (NIPO) can and cannot register as trademarks.
Trademark: SWIX
Goods: Class 28 - Ski wax.
Case number: 201608902
Result: Has distinctive character
Reason: The word SWIX means nothing. It does not describe the goods, and we believe it is able to be perceived as someone's special characteristic.
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Trademark: YOU DESIGN. WE DELIVER.
Services: Class 35 - Ordering services of electronic components.
Case number: 201600998
Result: Lacks distinctive character
Reason: The trademark text only appears as a general advertising statement. The trademark will not be perceived as someone's special characteristic.
Trademark : Burger Shack
Services: Class 43 - Restaurant services.
Case number: 202110306
Result: Has distinctive features
Reason : The text can be translated as "burger stand". When the trademark is used for restaurant services, it can be perceived as purely descriptive, and other market players may need to use the same text. Because the label text is perceived as purely descriptive information, it also lacks distinctive character.
The logo element above the text, a lumberjack eating a burger, will be perceived as someone's special characteristic. The figurative element makes the trademark as a whole distinctive.
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Trademark : Dailies
Goods: Class 9 - Contact lenses.
Case number: 202007660
Result: Lacks distinctive character.
Reason: The word DAILIES will immediately be perceived as information that the contact lenses are daily lenses or are meant to be replaced daily.
The drop figure will be perceived as descriptive information that the contact lenses are moist or keep the eye moist. The blue background is purely decorative and does not add distinctive character to the whole.
Overall, the mark will be perceived as descriptive, and will not be perceived as someone's special characteristic.
Trademark: Apple
Goods: Class 9 - Computers.
Case number: 201716122
Result: Has distinctive character.
Reason: This apple logo says nothing about the goods, and is capable tof being perceived as a characteristic that designates one particular actor.
If the mark had been applied for apples, the mark would probably not have been distinctive.
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Trademark : H. Lundbeck
Goods: Class 5 - Pharmaceutical and medical preparations.
Case number: 201708835
Result: Lacks distinctive character.
Reason: This mark will be perceived as something purely decorative and aesthetic when used on the goods, which in this case are pharmaceutical products. The consumer will not perceive the mark as a guarantee that the goods come from one particular actor.
Trademark: Graphical presentation (color black)
Goods: Class 32: Beer.
Case number: 200305375
Result: Lacks distinctive character.
Reason: In this case, an exclusive right to the color black itself, for "beer", has been applied for.
If you see a black beer can in a buying situation, you will only think that this is the color of the can, and not a trademark. The trademark therefore lacks distinctive character.
For competitive reasons, there is also a need to keep colors free for all, and not give individual market players exclusive rights to certain colours.
Is it possible to register a trademark that lacks distinctive character?
If a trademark application is rejected because the mark lacks distinctive character, this is not the end of the story, necessarily. A trademark that lacks distinctive character can be registered if you can document that the trademark has been incorporated into the market. By "incorporated" is meant that the trademark is well known as someone's special characteristic.
However, it often takes a lot to incorporate a trademark that lacks distinctive character.
Other requirements for trademarks
How to write a trademark application
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Learn more about trademarks
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