The following is an edited transcript of my video, The Trademark Instrument Panel.


I’ve had the pleasure and challenge recently of helping teach my son to learn how to drive. It brings back lots of memories of learning to drive myself , it really forced me to think about how many things go into learning to drive. My son and I were talking one day recently about all of the information that’s communicated on the dashboard. Of course, more and more is being replaced with computer displays—not just your speed and not just how many miles you’ve gone, but how much gas there is, what the oil temperature or pressure is. And then there are those red lights or alarm bells for serious problems to check, like the infamous “check engine” light.

This led me to create a “Trademark Instrument Panel,” part of which shows the spectrum – from weak or dangerous names that are generic, descriptive (slightly better), suggestive (pretty good), arbitrary (really good in terms of getting protection), to coined or made up (the best, the most likely to be unique and fully strongly protected).

The panel also displays your registration status. Hopefully you’re in the green with the ® because you have a registration. If not, it’s pretty good to have a pending application that’s been filed. If you’re in the red, because you haven’t filed yet and you don’t have a registration, that’s a cause for concern, just like if your car was about to be running on empty.

At the bottom of the panel, you see three caution when lit items.

  • Is your registration due for renewal? If so, that’s a big red light. You want to make sure you address that as soon as possible.
  • Do you have an infringement or multiple infringements that have been unchecked? Meaning you haven’t dealt with them, you haven’t stopped them. That can really weaken or diminish your brand.
  • Finally, are you using your mark improperly? Are you using it generically? You’ve probably heard about Xerox and Kleenex and Popsicle fighting to avoid becoming legally generic because they have become so commonplace. For example, Kleenex on the box will say Kleenex Brand Tissues, to make it clear that you understand, and that they are making an effort to show that Kleenex is a brand name and not the name of all types of tissues. This can be a problem even for brands that are far less successful or well-known as those ones I’ve indicated. You want to make sure you’re not using your brand in a generic sense, no matter how big it is, and no matter where you’re using it.

You can measure your brand on the trademark instrument panel at any time. Make sure that you are hopefully on your way to being in the green, or at least not in the red or the bad zones on the panel and that you’re aware of those caution lights.

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