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The danger of a “descriptive” brand name

Posted by ipelton on: October 1st, 2010

“5 Hour Energy” drinks are fairly well known and have spawned a slew of competition in small 2 oz. bottles. What is “5 hour energy” drink? It provides energy. Guess for how long? According to their promotional materials, for 5 hours! The name is easy to market perhaps because no explanation is necessary.  A “Red Bull” brink is not intuitively an energy drink,  but a “5 Hour Energy” drink is.

One competitor of “5 Hour Energy” is “6 Hour Power.”  The makers of 5 Hour Energy sued the makers of 6 Hour Power for trademark infringement. Clearly the two names share the middle word, begin with a number, and end with a term for liveliness or oomph. Arguably they are very similar.

But a Federal District Court in Michigan found last month that “6 Hour Power” did not infringe on the trademark rights of “5 Hour Energy.”  Why?

  • The “5 Hour Energy” name was found to be ‘descriptive’ and thus rather weak. As stated by the Court:
    • “Given the descriptive nature of Plaintiff’s mark, i.e., that it provides users with five hours of energy, the mark itself has little strength.”
  • “6 Hour Power” was used in connection with a ‘house mark’, Stacker 2, so that it’s significance as the beverage brand name was reduced. This also showed the Defendant was attempting to use the phrase in a descriptive manner as much as a brand name.
  • The court also found it significant (though I find it hard to believe) that due to “Defendant’s previous use of the word POWER in connection with the sale of energy products, as well as Defendant’s previous use of a term that rhymes with POWER, the Court finds that Defendant has presented credible evidence that it did not choose the 6 Hour POWER mark to intentionally copy Plaintiff’s mark.”
  • Court opinion here.

In short, the weakness of the “5 Hour Energy” name, because there is little distinctive or creative about it, tipped many factors against Plaintiff and made stopping a potential infringer very difficult. Once sensed that the court might even believe that a defendant using “5 Hour Power” might not be infringing “5 Hour Energy.”

Another court could reach a different conclusion, but I agree with this court.  A very descriptive name is very difficult to protect unless the copier is using the identical phrase. For this reason, I have advocated suggestive or arbitrary brand names. For more about the spectrum of strong and weak names, see post here and here.

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