Why is an acquired distinctive character required?

An acquired distinctive character is required when the trademark does not have inherent distinctive character. The lack of distinctive character means that the trademark is not perceived as a distinguishing feature, meaning that it does not distinguish the holder’s goods and services from others’ corresponding goods and services.

This may be due, for example, to the trademark only describing the basic characteristics, amount, use, price or origin of the sought goods or services, or a common designation for the goods or services in the industry or in everyday language.

A trademark acquiring distinctive character means that it has been used long enough and to an adequate extent so that the consumers have begun to perceive it as a distinctive mark for a company’s goods or services.

Assessment of distinctive character – evidence of use

When PRV assesses a trademark’s use, we take into account all important factors in the matter. We look in particular at:

• the trademark’s market share
• how much the trademark has been used
• how large a geographic area the trademark has been used
• how long the trademark has been used
• how much the applicant has invested in marketing
• how well-known the trademark is among potential customers

It is not possible to say how much documentation is required in every single case. A main rule is that the more descriptive a trademark is, the more is required to verify that it has been used so much that it has acquired distinctive character.

Evidence of the trademark’s use must concern:

• the trademark that is stated in the trademark application
• the goods and services that the trademark application concerns

What can the documentation contain?

There are no exact requirements on what you should send in. The documentation can be various kinds of marketing: advertisements, brochures and catalogues. Here are some examples:

• The time that the trademark was first used. You can verify this information by sending in, for example, copies of advertisements from the period.
• Sales/turnover. If you are applying for protection for several goods or services, you should provide sales and turnover figures for each product or service applied for to the furthest extent possible.
• Marketing. Indicate an annual marketing expense. Describe what type of media you have marketed your goods or services in – such as daily newspapers, magazines, TV.
• Geographical area. State where in Sweden your goods or services are on sale.
• Other information. State all other information that you feel indicates that your trademark should be registered.