Do trademarks need acquired distinctiveness before a registration may be sought?
No. Trademarks do not even have to be used before a trademark registration may be sought. To be registered on the principal register all trademarks must have a certain quantum of distinctiveness. Marks that are neither generic nor descriptive of the goods or services are said to have enough “inherent distinctiveness” to be registered without proof of “acquired distinctiveness”. Descriptive and special case trademarks can be registered on the supplemental register without proof of acquired distinctiveness, although the rights offered are nominal. Descriptive and special case trademarks can be registered on the principal register upon proof of acquired distinctiveness (which is presumed after the trademark has been on the supplemental register for five years).
