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Can I register my brand name if it is descriptive?

A name that simply describes what you sell often fails the examination by the BOIP or EUIPO. This article explains why, and what you can do if your preferred name encounters this obstacle.

As a general rule, no. The BOIP and EUIPO will refuse a mark if the name does nothing more than describe the goods or services for which you want to use it. "Fast Courier" for a courier service, "Fresh Bakery" for a bakery, "IT Support" for IT services: these are words that every competitor needs in order to say what they do, and no one may claim them exclusively. This is called the requirement of distinctive character, and it is one of the first things the register examines as soon as you file an application.

The detail that matters most here: the line between descriptive and suggestive is thin, and the register often draws it more strictly than entrepreneurs expect. A name that evokes something without stating it literally usually passes the examination. A name that simply names the service almost never does. This difference determines whether your application will result in a refusal months later or simply be registered.

Why the register examines this

The thinking behind this rule is not bureaucratic, but economic. If a baker could claim the word "fresh" or "bread" as a mark, every other baker would face problems as soon as they use those words in their own advertising. Descriptive words must remain free for everyone in the sector. A mark gives you an exclusive right, and that exclusive right must not come at the cost of the language the entire market needs.

That is why the BOIP or EUIPO examine this ex officio, meaning no competitor has to do anything about it. This is a different stage from the opposition that may follow later: this is not about a conflict with an existing mark, but about whether your sign is suitable to function as a mark in the first place.

Descriptive, suggestive or fanciful

In practice, names fall roughly into three categories. A descriptive name directly states the property, function or origin, such as "Cleaning Service Rotterdam". A suggestive name refers to it without stating it, such as a name that evokes speed or freshness without using those words. A fanciful name has no substantive link to the service, such as an invented word. The further a name is from the first category, the greater the chance that it will be registered without problems.

This does not mean a descriptive name is unusable as a business name or trading name. You may use it freely, put it on your storefront and use it in advertisements. The problem is specific to trade mark registration: that requires distinctive character, and that is something different from a name that works well commercially.

What is possible: logo, addition, acquired distinctiveness

There are ways to give a descriptive element a place in a mark. A combined figurative mark, where the text is applied for together with a specifically designed logo, can derive distinctive character from that design, even if the text itself remains descriptive. Note: the protection then lies in the combination, not in the descriptive word on its own.

Also, a name that initially seemed descriptive may, after years of intensive use, have become so well known that the public sees it as an indication of origin. This is called acquired distinctiveness, and proof of it is usually demanding: it requires demonstrable familiarity with the relevant public, not just a few years of use. For most start-up businesses this is not a realistic path, but for established names it may be relevant.

How you can assess this beforehand

Because this ground for refusal is independent of existing marks owned by others, a conflict search against the registers is not the right tool here. What does help is taking a critical look at your own name: does it literally describe what you deliver, or does it merely suggest it? If you are in doubt, this is precisely the kind of question where the assessment of a trade mark attorney or legal advisor adds value, especially if significant time or budget has been invested in the name.

Our trade mark check with which you get a first indication in a few questions is primarily aimed at similarity with existing marks, but also signals if a name appears strongly descriptive. When preparing an application, we deliberately look at this too, although the final assessment remains with the BOIP or EUIPO. You can read more about what that preparation looks like at the approach to registering your mark, and on the page where we explain where our information comes from sets out which registers and sources we consult for that.

If you doubt whether your name might be running up against this limit, that is a good moment to test the question for free before you invest time in an application. Also check our collection of frequently asked questions about the application process for other points that are just as often overlooked.

This article is general information and not legal advice.