Category Archives: Disclaimers

Weak Marks and Disclaimed Terms – The Lesser Side of Trademark Life

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.

Class Disclaimers Disc. % Supplemental Supp. % Total
1 9,680 14% 967 1% 66,952
2 3,436 17% 357 2% 20,070
3 31,130 25% 2,629 2% 125,425
4 4,225 21% 344 2% 20,487
5 27,146 20% 3,032 2% 137,096
6 9,991 19% 1,133 2% 52,652
7 14,607 17% 1,749 2% 87,053
8 6,076 19% 692 2% 32,836
9 76,444 17% 10,890 2% 458,915
10 12,195 15% 1,776 2% 79,881
11 14,330 17% 1,891 2% 85,820
12 10,875 17% 1,114 2% 62,560
13 2,527 19% 319 2% 13,313
14 9,996 17% 1,203 2% 58,456
15 1,476 14% 287 3% 10,657
16 42,451 26% 5,946 4% 162,680
17 4,155 14% 499 2% 29,456
18 9,930 15% 765 1% 65,283
19 8,002 22% 858 2% 36,811
20 14,597 21% 1,580 2% 70,427
21 16,513 20% 1,889 2% 81,957
22 2,260 17% 250 2% 13,160
23 555 11% 40 1% 4,961
24 7,473 19% 578 1% 38,773
25 47,560 17% 6,565 2% 274,732
26 3,407 18% 389 2% 18,494
27 2,355 17% 217 2% 14,068
28 23,434 21% 2,224 2% 114,245
29 23,184 34% 1,902 3% 68,707
30 39,942 36% 3,030 3% 111,549
31 11,409 30% 995 3% 38,162
32 18,775 33% 1,297 2% 57,606
33 16,544 25% 1,386 2% 66,419
34 4,337 19% 506 2% 22,429
35 126,257 33% 14,360 4% 387,959
36 63,741 38% 6,010 4% 166,369
37 29,557 35% 2,224 3% 83,478
38 11,982 22% 1,390 3% 55,426
39 19,598 36% 1,592 3% 55,071
40 13,687 31% 1,069 2% 43,939
41 125,618 34% 14,893 4% 367,443
42 68,428 25% 8,640 3% 277,737
43 39,419 44% 2,317 3% 90,458
44 35,277 37% 3,928 4% 94,184
45 19,117 29% 2,509 4% 65,499
A 986 25% 30 1% 3,928
B 1,563 29% 245 5% 5,392
200 1,458 26% 83 1% 5,599
Goods 439,660 21% 53,831 3% 2,052,927
Services 446,962 35% 50,537 4% 1,295,357