Two lawsuits show that descriptive brands have a downside.
I came across a couple recently filed trademark lawsuits that emphasize the challenge of building a brand around a descriptive term.
The first was filed by Texas company Peanut Labs, Inc., which operates the site SurveyTool.com. The company is upset with Instantly, Inc for using the term “Survey Tool”. (Lawsuit PDF)
Survey tool is very descriptive. It’s a tool for surveys. If you Google “Survey Tool”, you’ll find a bunch of services describing themselves as survey tools.
That will make it difficult for Peanut Labs to go after Instantly, which offers the Instantly Survey Tool. Instantly marks that full term with a TM on its site, but also sometimes refers to it as just “Survey Tool” without its Instantly modifier.
Peanut Labs has a figurative (graphical) trademark for SurveyTool.com, not Survey Tool. And that mark expressly disclaims SurveyTool.com.
It would have been very difficult to get a trademark on “Survey Tool”, which is probably why the company didn’t apply for one. It’s trying to rely on common law rights. That’s an uphill battle.
The second case was filed by theScore, Inc., a company that provides sports apps and media sites. It’s challening the creator of a sports app called Score! (Lawsuit PDF)
Score isn’t as descriptive as Survey Tool when used for sports in general (rather than just sports scores). But it’s still a case in which it would be difficult to get a trademark for the term score as it relates to sports.
theScore has a figurative mark for The Score. It also has registered marks for Score Mobile, Score Anywhere and a couple others.
It might have a bit of a leg to stand one, but it makes sense that someone else would use the term score for a sports media product. There’s probably a good reason that theScore doesn’t also have a trademark for just the single word term.