Key Takeaways

  • An arbitrary trademark uses common words or symbols with no logical connection to the goods or services sold, such as Apple for electronics or Camel for cigarettes.
  • Arbitrary trademarks are considered inherently distinctive and receive strong protection under U.S. trademark law because they are unlikely to be used descriptively by others.
  • They differ from fanciful, suggestive, descriptive, and generic trademarks in strength and registrability.
  • The USPTO requires proof that an arbitrary mark functions as a source identifier, and legal clearance searches are critical to avoid conflicts.
  • Businesses should balance distinctiveness with marketability and memorability when choosing an arbitrary mark.
  • Legal counsel can help navigate the trademark registration process, conduct searches, and defend marks against infringement.

What Is an Arbitrary Trademark?

An arbitrary trademark is a word or image that already exists, but it has nothing to do with the business that uses it. Apple Computers is one of the classic examples, since iPhones and laptops have nothing to do with fruit or cider. Shell gas stations and Camel cigarettes are other good examples. The arbitrary trademark is one of five trademark categories recognized by the USPTO. 

Characteristics of Arbitrary Trademarks

Arbitrary trademarks are composed of ordinary words or symbols that have an established meaning unrelated to the product or service they represent. These marks stand out precisely because of this disconnect. The USPTO classifies them as inherently distinctive, meaning they do not require proof of secondary meaning to qualify for protection.

Key traits of arbitrary trademarks include:

  • Preexisting words or images: They use real, commonly known terms rather than invented ones.
  • No descriptive link: The mark has no logical relationship to the goods or services.
  • High distinctiveness: They are immediately recognized as unique identifiers of the source.
  • Strong legal protection: Competitors are unlikely to use similar terms, reducing confusion risks.

Examples include Amazon (for e-commerce, not the river) and Apple (for computers, not fruit). These marks succeed because they are memorable and distinct while avoiding descriptive pitfalls.

What Isn't an Arbitrary Trademark?

To really know what an arbitrary trademark is, it helps to understand the other four categories.

  • Fanciful Trademarks (sometimes called coined trademarks) use words or images that don't mean anything. This lets companies have the full protection of U.S. trademark law. After all, no one has a reason to use a made-up word except the company. This means they're stronger than arbitrary trademarks, too. The most well-known example would have to be "Kodak," which George Eastman made up for his camera and film company because he liked the hard K sounds. Most drug names are also made up, like Tylenol, Advil, and Percocet.
  • Suggestive Trademarks can be made-up or real words or images, but in this case the mark suggests something about the company's products. For instance, the company Microsoft produces software, so there's a connection. The Greyhound bus company took the name of a fast dog breed to suggest speed, and Timex watches have the word "time" in their name. Suggestive trademarks are weaker than arbitrary trademarks, but the USPTO still considers them to be strong marks.
  • Descriptive Trademarks get right to the point by describing a company's products. However, this means they don't get as much protection from trademark laws. This is because it's possible for someone to use the trademarked word or image to describe a different product. For example, some reviewers use the term "best buy" to describe good products, but you don't have to visit a Best Buy store to buy them. Companies named after their founders, like Ford Motors, also use descriptive trademarks. This is because a man named George Ford could own a motor and call it Ford's Motor.
  • Generic Trademarks aren't trademarks at all, or at least they aren't protected by trademark law. This means that everyone can use the word or image without any problems. That's why you can print a picture of apples on the side of an apple bag without asking Apple Computers first. It's also why Apple can't sell real apples and force everyone else to call theirs "crispy fruit."

Why Use an Arbitrary Trademark?

In terms of trademark strength, arbitrary marks sit between fanciful and suggestive marks. Every company wants as much trademark protection as possible, but there are reasons why fanciful marks aren't always the best idea. The biggest problem is that the company has to build the name up from nothing. The word doesn't mean anything and doesn't suggest anything about the company or product, so it's harder for people to remember.

Arbitrary trademarks don't have this problem. "Apple" already has a meaning, so all Steve Jobs had to do was make sure people thought of his company, too. Galaxy phones have nothing to do with the Milky Way, but your friends know what you mean when you say, "I'll text you on my Galaxy."

Another benefit of arbitrary trademarks is that they're less likely to suffer from "genericide." "Genericide" means that a trademarked word is so generic that the company can't keep others from using it anymore. Genericide can happen to any product that dominates its market, but it's more likely to happen to fanciful marks because they don't have a real meaning. Brands hit by genericide include the escalator, the thermos, and the yo-yo, and brands at risk include Bubble Wrap, Rollerblade, and Frisbee.

Arbitrary trademarks also have a head start when it comes to "secondary meanings." For the government to protect a trademark, the company that owns it has to prove that the public can connect the word to the company and not just its regular meaning. "Camel" is a kind of desert animal, and the cigarette brand is the word's secondary meaning. That's nice and clear. However, if you name your dairy company "Creamy Milk Butter," you'd have a hard time getting people to think of your company first.

Legal Advantages of an Arbitrary Trademark

Arbitrary trademarks occupy the upper tier of the trademark strength spectrum. Their uniqueness provides extensive legal protection under federal and common law. Once registered, these marks:

  • Prevent competitors from using confusingly similar marks, even in unrelated industries.
  • Simplify enforcement, as arbitrary marks rarely face descriptiveness challenges.
  • Increase brand valuation, since a strong mark can become a core business asset.
  • Aid global expansion, as distinctiveness strengthens international registrations under treaties like the Madrid Protocol.

From a litigation standpoint, arbitrary marks give owners a significant advantage in infringement cases, as courts often recognize their distinctiveness without extensive evidence.

Why Avoid an Arbitrary Trademark?

The biggest problem with using words that already exist is that other people might have used them first. Apple Computers is a great example of this, too. Back when Steve Jobs was still in middle school, the Beatles created a record label and named it Apple Corps. Both companies would go on to spend years and millions of dollars arguing over that single word.

Also, there are reasons a company might want to choose a weaker trademark instead. Using your last name for the company is easy to remember, distinctive, and it gives your products a personal touch. Using a first name, like Uncle Ben's rice and Aunt Jemima syrup, gives a product a homemade feel you can't get from a random or made-up word.

"Holiday Inn" sounds like a nice place to stay for a long weekend, but "Cranberry Inn" just sounds random. Cranberry Inn would have to spend years marketing itself just to get to where Holiday Inn starts.

Common Challenges with Arbitrary Trademarks

Despite their strength, arbitrary trademarks have drawbacks that entrepreneurs should consider before filing an application:

  1. Marketing hurdles: Since these marks have no inherent connection to the product, companies must invest heavily in advertising to build consumer association.
  2. Potential conflicts: The use of real words increases the likelihood of encountering existing registrations in other industries.
  3. Consumer disconnect: Some marks may feel irrelevant or confusing to new customers, slowing initial brand recognition.
  4. Legal disputes: Famous examples like Apple Corps vs. Apple Computer highlight that even successful marks can spark costly litigation if due diligence isn’t performed.

Careful trademark searches and legal consultation can help mitigate these challenges before registration.

How to Choose the Right Arbitrary Trademark

The way the story goes, Steve Jobs named his company on a whim. This means he could have avoided all those lawsuits if he had only done some research and picked "Peach" or "Plum" instead. Unfortunately, Jobs didn't know just how important his name choice would become, and his company would pay the price.

Picking good company and brand names isn't just important, it's important to do right away. A lot of a company's reputation sits on its name, and it can be very hard to bring customers back after changing it. Food companies regularly have trouble keeping customers after changing nothing but their package designs.

Something else you should understand is that arbitrary trademarks don't have to be "arbitrary" at all. Even if your company's name has nothing to do with your industry, it can still say something about your identity. Rockstar and Red Bull energy drinks don't have anything to do with playing music or cows, but their names are fun and energetic. You can do the same thing by picking an arbitrary trademark that has nothing to do with your products but everything to do with your public image. Brainstorm words that describe feelings, ideas, and imagery that you want your product to evoke in consumers. It can also be helpful to learn what keywords potential customers use in search engines when they're trying to find a product or service like yours. 

You should keep track of what kind of trademarks your competition is using. If arbitrary trademarks are common, using one can help you fit in with the crowd. On the other hand, using an arbitrary trademark when no one else does will make you stand out, but it can also make customers more cautious about buying your products.

Branding is key, but it's just as important to pick the right words and images for your brands. An arbitrary trademark might sound random, but it will pay off down the line to put in the research up front.

Strategic Tips for Selecting an Arbitrary Trademark

When developing an arbitrary trademark, creativity and foresight are essential. To create a strong, memorable brand identity:

  • Brainstorm widely recognized yet unrelated terms. Look for words that evoke a feeling or image consistent with your brand persona.
  • Ensure cultural neutrality. A term may be arbitrary in one language but descriptive or offensive in another.
  • Test market recall. Choose a mark that resonates with consumers despite lacking a descriptive connection.
  • Avoid overused words. Unique combinations or less common terms are easier to protect.
  • Work with legal counsel early to assess registrability and infringement risk.

While arbitrary trademarks may take longer to gain recognition, they often achieve greater long-term distinctiveness and legal stability once established.

Filing and Registering an Arbitrary Trademark

The trademark application process for an arbitrary mark follows standard USPTO procedures but requires strategic preparation to ensure approval. Key steps include:

  1. Conduct a comprehensive trademark search across federal, state, and common law databases to ensure the mark isn’t already in use.
  2. Confirm that the mark is non-descriptive and functions as a unique identifier.
  3. Prepare a clear specimen showing the mark as it appears in commerce, such as on product packaging or a website.
  4. File the application with the USPTO, selecting the correct trademark class(es) for your goods or services.
  5. Monitor and defend your mark post-registration against unauthorized uses.

Hiring an experienced trademark attorney can streamline this process, minimize legal risks, and help maintain exclusive rights through renewals and enforcement.

Frequently Asked Questions

  1. What makes an arbitrary trademark different from a fanciful mark?
    A fanciful mark is completely invented (like Xerox), while an arbitrary mark uses a real word applied in an unrelated context (like Apple for computers).
  2. Are arbitrary trademarks automatically protected?
    They are inherently distinctive and thus eligible for registration without proof of secondary meaning, but filing with the USPTO secures federal protection.
  3. Can I use a common word as my trademark?
    Yes, if the word has no logical relationship to your product or service. However, you must ensure it isn’t already trademarked in a similar context.
  4. Do arbitrary trademarks work well internationally?
    Generally, yes. Their distinctiveness makes them strong candidates for international protection, though translation and cultural reviews are important.
  5. How can an attorney help with my arbitrary trademark?
    An attorney can perform detailed searches, file USPTO applications, respond to Office Actions, and defend against infringement—ensuring your brand remains secure.

If you need help with understanding Arbitrary Trademark, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.