Even though the exclusive right to use a trademark has been acquired, all marks are not treated equally. The courts and some statutes provide more protection to "strong" marks than to "weak" ones. Under the Lanham Act weak marks may not ordinarily be registered. The relative strength of a mark is based largely upon the likelihood of the word or symbol becoming identified in the mind of the public with a particular good or service.

Words or symbols which are entirely new and unlike any in ordinary use are the strongest. "Sizzibit" candy or "Hardet" jewelry would be strong marks, because those words are made up. There is a very good chance that these marks would become identified with a particular good or service.

Marks which are arbitrary or fanciful and not descriptive of the product are generally strong. "Grumpy" computer disks or "Dragon" pencils are relatively strong marks, because they are arbitrary and do not describe the product.

Suggestive marks are those which do not directly describe the product, but suggest a quality which is inherent or desirable in the product. Marks such as "Gazelle" automobiles and the "Castle" motel do not quite describe the car or the motel, but they do suggest the qualities of speed and comfort. Suggestive marks are on the borderline. They may be considered either strong or weak.

Descriptive or generic words make weak marks. For many years the courts have held that it would be unfair to allow one business to monopolize trademarks which only describe a good or service. Some examples of descriptive marks include "Comfortable" shoes, "Accurate" accounting service, or "Quality" cleaners. Such marks could be used, but would not be afforded much protection by the courts and could not ordinarily be registered under the Lanham Act. Misspelling of a descriptive word (Quick Qulean) does not generally increase mark protection.

Ordinarily names of persons or geographic locations make poor marks. Again the courts have held that it would be unfair to allow a particular business to monopolize such names as "Johnson's" construction, "Rapid City" laundry, or "Eastside" liquors. These marks are ordinarily not registerable under the Lanham Act.

Occasionally a "weak" mark or trade name will achieve what is known as secondary meaning and become so closely related in the mind of the public with particular goods or services that it is given the protection of a strong mark. Ordinarily descriptive terms or trade names are not given much mark protection, but names such as "American Airlines" have sometimes become so closely associated with the service provided by the airlines that secondary meaning mark protection has been granted. The Lanham Act provides a form of secondary meaning protection for marks which have been in use for five years prior to registration. However, the choice of this type of name for a new product or service is usually a poor one.

Misdescriptive marks or those which misdescribe a product in a meaningful way should be avoided. For example using the mark "American Made" for imported products would be a mistake. However, a mark which is so misdescriptive that there is little likelihood of confusion would be considered fanciful and may be a good mark. For instance, a store selling "Speedy" turtles would have a fanciful rather than misdescriptive mark.

Types of marks not subject to registration under the Lanham Act are discussed in more detail in the section on trademark registration.