Trademark law views marks on a continuum of strength – the strongest marks are coined or arbitrary marks, followed by suggestive marks, with descriptive marks and then unprotectable generic terms bringing up the rear. While a strong, enforceable mark is ideal, brand owners often desire marks towards the suggestive or descriptive side of the spectrum to make it resonate more with consumers.

We at TM TKO were curious whether certain types of industries found more value in weaker marks than others. Accordingly, we did some research as to how common disclaimers and Supplemental Register registrations were among active applications and registrations in various classes.

Full data is at the bottom of this blog post.

Goods vs. Services

Both disclaimers and Supplemental Register registrations were more common for services than goods, with 21% disclaimers in goods vs. 35% in services and 3% disclaimers for goods vs. 4% disclaimers for services.

Disclaimer Trends

Among goods, disclaimer volume was fairly evenly distributed. Classes 3, 16, 19 had rates over 20%; the 29, 30, 31, and 32 all had very high rates of over 30%. Perhaps foods and drinks find more value than most industries in including the generic term for the product in addition to the distinctive part of the brand; the higher levels of disclaimers is a clear trend.

Among services, disclaimers were considerably more common. Classes 35, 36, 37, 41, and 44 all exceeded 30%, and Class 43 (restaurants and hotels) had a whopping 44% disclaimer rate – apparently, the pressing biological needs for food and drink and rest make identifying the nature of the establishment more central than these than for other services. It certainly correlates with the trends for food and drink goods.

Supplemental Register Trends

The largest Supplemental Register percentages were in Classes 16 (books and other printed matter), 35 (retail and a bunch more), 36 (insurance and financial services) 44 (medical services), 45 (legal, security, and social services), and Class B (services certification marks). Class 16 also appeared under the most common disclaimers, perhaps reflecting a trend in magazine titles or educational material titles that are more likely to find value in descriptive terms or marks?

Supplemental Register registrations were quite rare in Class 1 (chemicals), 18 (leather goods), 23 (yarn), and 24 (textiles). It’s not clear to us why admittedly descriptive marks would be more common for these sorts of products, but between leather, yarn, and textiles, they are related goods, so appears to be a trend for these related industries. Disclaimers were pretty low in each of those classes, too, so it appears to be a real trend.

Doing These Searches in TM TKO

Go to “Search,” the manual search section, then use the “Register” option (to narrow to Supplemental) or the “Disclaimer Present” option (to find those that have a disclaimer of some sort), plus class and “Lifecycle Status” set to “active.”

Data

The full data follows. Keep in mind that the numbers reflect the number of active filings that contain a class.