Naming a brand requires both creative thinking and an understanding of how trademark examiners and courts evaluate potential conflicts, using frameworks like the USPTO’s DuPont factors and the courts’ Polaroid factors to assess likelihood of confusion. They look at the strength and distinctiveness of existing marks, how similar two names sound or appear, whether the goods or services target the same customers, and whether an established brand might reasonably expand into a new category. Real-world confusion, overlapping marketing channels, how carefully customers make purchase decisions, and any evidence of intentional copying also carry significant weight.

Disclaimer: We are not attorneys and do not provide legal advice. We always recommend consulting an IP attorney.

In this episode of Naming in the AI Age, Ashley Elliott breaks down the two main trademark frameworks—DuPont and Polaroid. The DuPont Factors, used by the USPTO and TTAB, determine whether a name can be federally registered, while the Polaroid Factors, applied by courts, assess real-world trademark infringement and consumer confusion. Both focus on “likelihood of confusion” but in different contexts—one administrative, the other legal. Ashley walks through key elements like the strength and similarity of marks, proximity of goods, potential brand expansion, evidence of confusion, marketing channels, buyer attention, and intent to copy. Her core advice: choose distinctive, coined names, conduct early clearance checks, avoid crowded markets or soundalike brands, and keep an audit trail of your creative process. Pair AI-driven creativity with smart trademark vetting to build a brand that stands out and stays protected.

In this episode of Naming in the AI Age, Mike Carr and Ashley Elliott discuss how to reduce legal risk in brand naming, using the Smucker’s vs. Trader Joe’s case as an example. They contrast descriptive names like Trader Joe’s Crustless Peanut Butter and Strawberry Jam Sandwiches - clear but hard to protect - with distinctive names like Smucker’s Uncrustables, which are unique and ownable.

Mike and Ashley explain that naming strategy should align with business goals: private labels can lean on descriptive names, while national brands need distinctive ones to stand out. They outline a five-step vetting process—from knockout searches to attorney review—and stress that investing in a thorough clearance process builds both legal protection and lasting brand equity.

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Smucker's sued Trader Joe's

USPTO

Cherubs

Itzakadoozie

In this episode of Naming in the AI Age, Ashley Elliott explains how to read a USPTO trademark record using Nike as an example. She clarifies that multiple “Nike” entries represent different filings for various product classes, like clothing, footwear, and digital goods. Each record lists the mark, status, goods and services, owner, and registration details. Clicking into a record reveals more specifics—filing and registration dates, serial numbers, and the goods and services description that defines protection scope. Ashley emphasizes that U.S. trademark rights are based on first use, not first filing, and advises focusing on four elements: status, goods and services, key dates, and owner. Mastering these pages, she notes, is vital for anyone naming or protecting a brand.

Using your trademark properly is just as important as registering it. Misuse can weaken protection and even make a mark generic. Trademarks should act as adjectives, not nouns or verbs—say “Nike shoes,” not “Nikes” or “I’ll FedEx this.” Brands that became generic, like Escalator or Aspirin, lost their rights, while companies like Kleenex, Xerox, Google, and FedEx actively fight misuse. From the start, how you present your name shapes customer habits, which is why brands invest in correcting errors. To protect your mark, always use it correctly, educate others, and guard against genericide before it erodes a valuable asset.

The spectrum of distinctiveness explains why some brand names are stronger than others in trademark protection and branding. Generic terms like “milk” or “bread” can never be protected, while descriptive names such as “Quick Print” are weak unless they gain recognition. Suggestive names like Coppertone or Netflix are inherently distinctive, balancing creativity and clarity. Arbitrary marks like Apple for computers are highly protectable but need marketing to link them to the product. At the top are fanciful names like Kodak or Verizon—completely invented, legally strongest, and iconic with investment. The takeaway: the more distinctive the name, the stronger the protection and brand.

Disclaimer: We are not attorneys and do not provide legal advice. We always recommend consulting an IP attorney.

When naming a business, product, or service, start with a knockout search—a quick, early check to rule out obvious conflicts and overused patterns while shaping creative direction. Once you’ve narrowed to top contenders, move to a comprehensive search led by an IP attorney. This deeper, time-intensive review uncovers hidden risks that quick checks miss and ensures your chosen name can be legally protected before launch.

Disclaimer: We are not attorneys and do not provide legal advice. We always recommend consulting an IP attorney.

This episode explains the difference between trademarks and copyright. The TM symbol signals a claim on a name or logo but offers no legal protection, while the Ⓡ symbol is for USPTO-registered trademarks and carries legal weight. Copyright, on the other hand, protects creative works—books, music, art, software—by covering expression, not brand identity. In short: trademarks protect identity, copyright protects expression. 

In this episode of Naming in the AI Age, Ashley Elliott explains trademark classes and why they matter. Trademarks are divided into 45 classes of goods and services, meaning the same name can exist in different classes—like Delta Airlines and Delta Faucets. A common myth is that one filing covers all categories, but protection only applies to the classes you file in. Filing too narrowly leaves gaps; too broadly raises costs and risks conflict. In the U.S., entrepreneurs can file under “Use in Commerce” (already in the market) or “Intent to Use” (reserve rights before launch). The takeaway: strike a balance—protect current needs, plan for growth, and always consult legal counsel.

Disclaimer: We are not attorneys and do not provide legal advice. We always recommend consulting an IP attorney. 

A USPTO search is a good first step, but it doesn’t guarantee brand protection. The federal database only covers federally filed trademarks, leaving out state registers, the Trademark Official Gazette (with recently approved marks), and common law rights from simply using a name in commerce. That means small businesses, Etsy shops, YouTube channels, or local restaurants may have enforceable rights even if they don’t appear in the USPTO system. To avoid conflicts and build a strong brand, a clearance search should cover federal, state, and online sources—like Google, domains, and social media—and be followed by an IP attorney’s review.

Just a heads-up: We are not attorneys and this isn't legal advice - just helpful info. For specific trademark questions, always consult with a qualified IP attorney.