Although trademarks consisting of single words or

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Although trademarks consisting of single words or names are most commonly encountered, federal trademark protection has sometimes been extended to colors, pictures, label and package designs, slogans, sounds, arrangements of num- bers and/or letters (e.g., “7-Eleven”), and shapes of goods or their containers (e.g., Coca-Cola bottles). Service marks resemble trademarks but identify and distinguish services. Marks fall into five general categories of distinctiveness (or nondistinctiveness): 1. Arbitrary or fanciful marks. These marks are the most distinctive—and the most likely to be protected —because they do not describe the qualities of the product or service they identify. The “Exxon” trademark is an example. 2. Suggestive marks. These marks convey the nature of a product or service only through imagination, thought, and perception. They do not actually describe the under- lying product or service. The “Dietene” trademark for a dietary food supplement is an example. Although not as clearly distinctive as arbitrary or fanciful marks, sugges- tive marks are nonetheless classified as distinctive. Hence, they are good candidates for protection. 3. Descriptive marks. These marks directly describe the product or service they identify (e.g., “Realemon,” for bottled lemon juice). Descriptive marks are not protected unless they acquire secondary meaning. This occurs when their identification with a particular source of goods or services has become firmly established in the minds of a substantial number of buyers. “Realemon,” of course, now has secondary meaning. Among the factors considered in secondary-meaning determinations are the length of time the mark has been used, the volume of sales associated with that use, and the nature of the advertising employing the mark. When applied to a package delivery service, for in- stance, the term overnight is usually descriptive and thus not protectible. It may come to deserve trademark protection, however, through long use by a single firm that advertised it extensively and made many sales while doing so. As will be seen, the same approach is taken concerning deceptively misdescriptive and geographically descriptive marks. 4. Marks that are not inherently distinctive. Although these marks are not distinctive in the usual senses of arbi- trary nature, fanciful quality, or suggestiveness, proof of secondary meaning effectively makes these marks distinc- tive. They are therefore protectible if secondary meaning exists. The Supreme Court
has held that under appropriate circumstances, product color is a potentially protectible trademark of this type. 5. Generic terms. Generic terms (e.g., “diamond” or “truck”) simply refer to the general class of which the particular product or service is one example. Because any seller has the right to call a product or service by its common name, generic terms are ineligible for trademark protection.

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