Distinctiveness is a central concept in trademark law that refers to the ability of a sign (word, logo, slogan, etc.) to identify and distinguish a company’s products or services from those of other companies. In other words, for a trademark to be registered and protected, it must be distinctive, meaning that it must enable consumers to recognise the commercial origin of the associated products or services.
Key aspects of distinctiveness:
- Ability to identify the origin of goods or services: A trademark is considered distinctive if it allows consumers to make a direct link between the sign and a specific company, without confusion with other goods or services on the market.
- Types of trademarks: Arbitrary or invented trademarks (e.g., “Kodak” for cameras) are often considered highly distinctive because they have no meaning in the field of goods or services they designate. Conversely, descriptive trademarks (e.g., “Chocolate” for chocolate) are not distinctive and may be refused registration unless they acquire distinctiveness through use.
- Acquisition through use: If a trademark lacks distinctiveness, it may acquire it over time through prolonged and intensive use, provided that the public associates the sign with a specific commercial origin. The acquisition of distinctiveness through use must be demonstrated.
- Essential function: Distinctiveness is a fundamental criterion that ensures that the trademark fulfils its essential function, namely to guarantee to consumers the origin of the goods or services and, by extension, their quality.
In summary, distinctiveness is an essential condition for a trademark to be protected. It ensures that the sign used as a trademark can be recognised by consumers as an indicator of the origin of the owner’s goods and services.