Trademark rights arise upon actual use of the mark in commerce. All trademarks fall into two classifications: inherently distinctive and non-inherently distinctive marks. Inherently distinctive marks acquire common law rights upon actual use, whereas non-inherently distinctive marks require proof of secondary meaning to receive trademark rights. Secondary meaning is established when the owner has established that, in the mind of the consuming public, the primary significance of the term is to identify the source of the product rather than the product itself. In other words, a mark has achieved secondary meaning when the consuming public perceives that the product or service emanates from a single source.
- Inherently distinctive marks – Fanciful, arbitrary and suggestive marks.
- Non-inherently distinctive marks – Descriptive marks
- Generic marks are not eligible for trademark protection.
