Can a mark like "exhilarated" be suggestive if the services are "providing a social networking website for entertainment?
Yes or no
Don't particularly like being limited to a one word answer. Probably not. The role of the attorney you are looking for is to ask the qeustions you are not asking, unless you feel that Avvo can substitute for ongoing legal representation.
The above is general legal and business analysis. It is not "legal advise" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.
Yes, I could imagine a scenario wherein a term like "exhilarated" (not necessarily that word, but something like it) might be deemed by an attorney, a Trademark Examining Attorney at the US Patent & Trademark Office, or a judge, to be "suggestive" of services denominated as "providing a social networking website for entertainment."
But then the question arises: so what? What difference would it make if the term you are asking about would fall into the definition of a "suggestive" trademark? As you may have learned, marks can be categorized as being fanciful, arbitrary, suggestive, descriptive or generic. Distinctiveness of
a descriptive mark can be built up through use of the mark that develops in the mind of a prospective customer a "secondary meaning" of the term.
Is your issue to show that the term is "suggestive" rather than "descriptive"? Or that the term is "suggestive" rather than "arbitrary"? Any meaningful answer to your question would depend on the context.
This posting is intended for general education and isn't "legal advice." It doesn't create or evidence an attorney-client relationship. You are encouraged to engage an attorney in the pertinent jurisdiction for confidential legal advice on matters of any importance.
You're continuing to ask the wrong question. Your goal isn't to acquire and register a "suggestive" TM, it's be acquire and register a more protectible "fanciful" and/or "arbitrary" mark.
If you want to end up with a viable and available TM, and you recognize how important it is to have a good TM, stop trying to do your own legal work, and stop trying to use this site for a matter that reuires personalized counsel. It's clear you don't know what you're doing, and also clear that this is a job for a professional, so if your business is worth working on, hire a TM lawyer.
Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to any follow-up comments. If you want to hire me, please contact me. Otherwise, please don't expect a further response. We need an actual written agreement to form an attorney-client relationship. I'm only licensed in CA and you shouldn't rely on this answer, since each state has different laws, each situation is fact specific, and it's impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.
Trademark Application Attorney
I agree that the "Yes or no" response that you desire is not really appropriate. As the others have mentioned, your purpose is still not clear, and therefore our answers are similarly unclear.
If the question is, 'can I register a mark that is deemed suggestive by the USPTO' then the answer is yes.
If the question is, 'will the trademark office find the trademark to at least be suggestive (as opposed to generic, descriptive, arbitrary, or fanciful' then the answer is probably. But it could also be no.
Trademark law is so fact specific that to expect a yes or no answer with the little information provided is somewhat of an unrealistic expectation. If you are trying to register a mark, you can roll the dice and see what the examiner says. But, why not take the necessary appropriate steps and contact an attorney who can really help you get it done right the first time?
I am not your lawyer and this comment does not create an attorney-client relationship. Plus, it is not a good idea to base legal decisions solely on comments posted to an open forum board. However, I hope that you will seek the advice of an attorney if you feel that your situation requires such expertise.
Intellectual Property Law Attorney
Yes or No? Wouldn't it be nice if it were that simple? You want a yes or no answer. OK. YES you need an attorney and NO you can't do this yourself. Sorry to sound like a smartass, but that's the way it is, pal.
You are undoubtedly asking the wrong question, as "suggestive" marks are generally registrable. What you are doubtless asking is whether it is "merely descriptive" or "generic", as those types of marks are not registrable on the principle register of the US PTO, and that is likely what you want to do if you know what you are doing. MY educated guess is you are facing a refusal to register and you are asking us so you can get some language to use in a do-it-yourself response to that refusal. No one here will take that bait. You need to see a trademark attorney if you are facing a refusal, as she or he is trained and experienced in responding to refusals while you are not. You will say the wrong thing and the attorney will say the right things. Even if the right things are said, the trademark examining attorney may not accept the argument and repeat the refusal. Your attorney will know how to appeal such a decision if an appeal makes sense.
Superficially, it seems more probable than not that "exhilarated" is neither "merely descriptive" nor "generic". So, I agree with Gerry Elman's answer. Of course, if you don't even know the right terminology to use, you can't hope to fashion an intelligent response to the refusal to register, if my guess is right.
I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.
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