Understanding Trademark Strength
We frequently discuss the cannabis-specific challenges that brands face when seeking trademark protection. But it’s just as important not to lose sight of the core trademark principles that apply to all businesses—especially the need for a strong, distinctive mark.
Clients often approach us with catchy, creative names that, unfortunately, are (or are likely to be) ineligible for trademark protection. That’s because not all trademarks are created equal. There is a spectrum of distinctiveness, and where a mark falls on that spectrum determines both its legal protectability and its effectiveness as a brand.
In general, the more distinctive the mark, the stronger it is in identifying the source of goods or services—and the broader the legal protection it can receive. Conversely, a mark that lacks distinctiveness or is similar to others in the market will be considered weak.
Below is a breakdown of the main categories of marks, ranked from strongest to weakest:
Fanciful Marks
These are invented words with no prior meaning. Examples include MYLANTA and SYNOVUS. Fanciful marks are the most inherently distinctive, offering robust legal protection. However, they may require greater marketing effort at the outset to educate consumers about what the brand represents.
Arbitrary Marks
These are real words used in an unrelated context. Well-known examples include APPLE for computers and CAMEL for cigarettes. Arbitrary marks are also highly distinctive and legally strong—but note that distinctiveness depends on the context. “Apple” would be almost completely generic if used to sell apples (see Generic Marks below).
Suggestive Marks
Suggestive marks hint at a product’s qualities without directly describing them. Examples include AIRBUS for aircraft and PEPTO-BISMOL for digestive relief. These marks are easier for consumers to grasp than fanciful or arbitrary marks but typically receive somewhat narrower protection.
Descriptive Marks
Descriptive marks directly describe the goods or services (e.g., “Delicious Brownies”). These marks are too weak to function as trademarks unless they acquire secondary meaning—usually through long-term, exclusive use in commerce (typically five years or more).
One of the most common reasons the USPTO refuses a trademark application—whether cannabis-related or not—is because the mark is “merely descriptive.” For example, “Bob’s Beer” is likely to be refused because it combines a personal name with the product. Similarly, geographically descriptive marks like “East Seattle Cannabis Company” are typically rejected for lacking distinctiveness.
Deceptively or Geographically Misdescriptive Marks
On the other end of the spectrum, some marks are refused because they are deceptively misdescriptive—meaning they suggest something false about the product. For example, the USPTO rejected a 2012 application for THCTEA because the tea did not contain THC.
Marks can also be geographically misdescriptive—falsely suggesting a geographic origin. A name like “Jamaican Cannabis Co.” for products not from Jamaica would likely be refused on this basis.
❌ Generic Marks
Generic terms are the common names of products or services and can never be protected as trademarks. For instance, you can’t register “Soda” for soft drinks. No amount of use or recognition will make a generic term protectable.
✅ Best Practices for Brand Building
If you’re in the early stages of branding your cannabis company or products, consulting a trademark attorney early on is a smart move. An experienced attorney can help you avoid issues like descriptive or misdescriptive marks, and instead guide you toward something distinctive, protectable, and valuable.
Even if you’re not currently pursuing federal registration, that’s no reason to settle for a weak or overused mark. In a fast-moving industry like cannabis, the right trademark is more than a legal asset—it’s a strategic differentiator. Taking the time to build a strong brand from the beginning can save you from costly rebranding and enforcement issues down the road.
