Distinctiveness

Distinctiveness

In Part A of this chapter, you learned that anything that is capable of conveying meaning, that can distinguish goods from those sold by others, and that can indicate the source of the goods can be a trademark.  Central to this analysis was a concept called distinctiveness: the ability of a given symbol to meet these requirements.  Color, we learned, can be sufficiently distinctive—although it is not inherently so.

The second part of this chapter examines this fundamental component of a trademark.  The classic case for discussions of distinctiveness is Zatarains v. Oak Grove Smokehouse.  This case highlights two primary legal structures for analyzing distinctiveness: the inherent/acquired distinctiveness divide and the Abercrombie spectrum.  The opinion also discusses Oak Grove’s statutory fair use defense, a topic we will return to in class 33.

Although Zatarains involves two word-marks (FISH FRY and CHICK FRY), nonverbal symbols and logos are also frequently used as trademarks.  Although the Abercrombie spectrum is sometimes used to analyze the distinctiveness of these marks, other frameworks are also employed.  The most common comes from Seabrook Foods, Inc. v. Bar-Well Foods, Ltd., 568 F.2d 1342 (C.C.P.A. 1977).  I describe this test in the video lecture.