A trademark is only valuable if it gives you enforceable, strategic leverage. Weak trademarks—generic, descriptive, functional, common, or non‑distinctive—don’t give you leverage. They drain resources, limit brand growth, and create enforcement headaches. Understanding what not to trademark is just as important as knowing what you can protect.
Ludwig APC helps businesses and individuals navigate these distinctions so they can invest in marks that actually strengthen their competitive positions. Below are five categories of marks that either cannot be trademarked under U.S. law or generally aren’t worth pursuing from a business strategy standpoint.
Generic Terms
Generic terms are common names for goods or services, such as “coffee,” “software,” “shoes,” etc. The United States Patent and Trademark Office explicitly states that generic terms can never function as trademarks because they fail to identify a unique source of goods or services. Startup Savant also notes that trademarks must distinguish your goods from others, and generic terms simply can’t do that.
Why These Marks Generally Aren’t Worth Trying to Register—Generic names make you forgettable, unsearchable, and impossible to enforce. A generic brand is a brand without leverage.
Descriptive Phrases
A descriptive mark tells consumers what your product is or does, such as “Fast Car Wash,” “Organic Granola,” “Budget Tax Prep.” The USPTO explains that merely descriptive marks lack inherent distinctiveness and are typically refused unless they acquire “secondary meaning” through long-term, exclusive use. In general, descriptive marks often fail because they don’t help consumers identify a unique source.
Why These Marks Generally Aren’t Worth Trying to Register—Descriptive names box you in. They limit your ability to expand offerings, they’re hard to enforce, and they require years of use before they gain protectability. You spend more time proving distinctiveness than building it.
Functional Product Features
Trademarks protect brand identifiers—not the functional aspects of a product. The USPTO makes clear that functional features cannot be trademarked because doing so would grant a monopoly over useful product characteristics. Functional features instead fall within the domain of patent law. Patents—not trademarks—are designed to protect innovations that improve how a product works, enhance performance, or affect cost or quality.
Examples include the ergonomic contour of a tool handle designed to improve grip or reduce strain, and a tire tread pattern engineered to improve traction or water displacement. Neither is likely trademarkable because each serves a functional purpose, but both could be patentable since they reflect performance‑enhancing innovation.
Why These Marks Generally Aren’t Worth Trying to Register—Trying to trademark a functional feature is using the wrong IP tool. You waste resources on an application that will fail, you may miss the window for patent protection, and you risk publicly disclosing functional details that weaken your competitive advantage.
Common or Widely Used Words in Your Industry
Even if a word isn’t generic, it may be so widely used in your field that it lacks distinctiveness. Cornell Law School’s Legal Information Institute (LII) explains that a mark must identify a single source to function as a trademark. Terms that are commonly used across an industry often fail this requirement because consumers don’t associate them with one business.
Example include using the term “performance” for fitness or athletic training services; “artisan” for food, beverage, or craft goods; or “innovation” for tech‑related products or consulting services. These are not necessarily generic terms, but they are used so much that consumers don’t associate them with any one brand or provider.
Why These Marks Generally Aren’t Worth Trying to Register—When you use common or widely used words, you fight an uphill battle. You’ll face USPTO refusals and struggle to enforce the mark.
Nontraditional Marks That Aren’t Distinctive
Nontraditional marks—such as sounds, colors, or scents—can be trademarked, but only when they serve as unique, distinct brand identifiers. Cornell Law School’s LII explains that a trademark must identify a single source, and marks that are functional or lack distinctiveness cannot qualify for protection.
Examples of non‑distinct marks include a simple “ding” or generic chime, a single shade of blue used for medical scrubs, or a lemon scent added to household cleaners. These features are either too common to point to one brand or serve a functional purpose that disqualifies them from trademark protection.
If a nontraditional feature is functional, it may fall within the realm of patent protection. Conversely, if the feature is nonfunctional and serves purely as a source‑identifier, it may be eligible for trademark protection—but not for a patent. Navigating distinctions like these is exactly why working with an IP firm such as Ludwig APC is a smart choice.
Why These Marks Generally Aren’t Worth Trying to Register—Nontraditional marks require extensive evidence of use. You may need consumer surveys, declarations, and proof of long-term exclusive use. The cost-to-benefit ratio is often upside down unless the element is already strongly associated with your brand.
How Ludwig APC Sees It
Weak marks don’t give brands leverage. They drain resources, limit brand growth, and create enforcement headaches. Strong trademarks, on the other hand:
- differentiate you
- scale with your business
- are enforceable
- build long-term brand equity
Choosing distinctiveness early saves time, money, and frustration later.
If you’re developing a new product name, logo, or brand identity, consider evaluating:
- How distinctive is the mark
- Whether it describes the product
- Whether it’s common in your industry
- Whether it’s functional
- Whether it’s truly protectable
Let’s Work Together: Global Experience, Personal Focus
For strategic guidance on trademark selection, enforcement, or brand protection, Ludwig APC can help you evaluate your options and build a protection plan aligned with your business goals.
Contact us today at (619) 929-0873 or consultation@ludwigiplaw.com to arrange a free consultation to discuss how we can help protect your innovations, your creative work, and your competitive edge.
