A name generator optimizes for the thing the law penalizes. It produces names that instantly say what you do, because that reads as clever and confident in a list of fifty. That immediacy is the exact legal definition of a descriptive term, and descriptive terms cannot be registered until you have used them long enough for the public to attach them to you specifically.

The tests that decide are published, short, and older than most of the people applying them. Four of them will settle almost any name you are considering.

Test one: where the name sits on the spectrum

The classification comes from a 1976 appellate opinion that is still the standard reference:

“The cases, and in some instances the Lanham Act, identify four different categories of terms with respect to trademark protection. Arrayed in an ascending order which roughly reflects their eligibility to trademark status and the degree of protection accorded, these classes are (1) generic, (2) descriptive, (3) suggestive, and (4) arbitrary or fanciful. The lines of demarcation, however, are not always bright.”

Generic is the end of the road, and the court was blunt about why. A generic term “refers, or has come to be understood as referring, to the genus of which the particular product is a species.” Acquired distinctiveness cannot rescue it, and the reasoning is worth reading in full because it explains a great deal about why some brands lose their names:

“no matter how much money and effort the user of a generic term has poured into promoting the sale of its merchandise and what success it has achieved in securing public identification, it cannot deprive competing manufacturers of the product of the right to call an article by its name.”

Descriptive versus suggestive is where nearly every real decision happens, and the test is one sentence:

“A term is suggestive if it requires imagination, thought and perception to reach a conclusion as to the nature of goods. A term is descriptive if it forthwith conveys an immediate idea of the ingredients, qualities or characteristics of the goods.”

The office illustrates it with a pair you can hold in your head: bronzer for suntan oil is descriptive and unregistrable on its own; Coppertone is suggestive and registered. The distance between those two words is the entire difference between a name you own and a name you rent.

Its own examples of descriptive marks are instructive because they sound like good names: “Creamy” for yogurt, “Apple pie” for potpourri, “Bed & breakfast registry” for lodging reservations. Its generic examples sound like what a founder types into a domain search at midnight: “Bicycle” for bicycles, “Bagel shop” for a bagel shop.

The subtlety that matters most for a naming exercise: the category attaches to the pairing, not the word. As the court put it, a term “may thus be generic in one market and descriptive or suggestive or fanciful in another”. Ivory is generic for a product made from tusks and arbitrary for soap. Apple is unregistrable for an orchard and registered for computers. So there is no such thing as a strong word, only a strong word-for-this-category. The corollary is uncomfortable: a name can also travel the other way. The court cites Escalator, “originally fanciful, or at the very least suggestive”, later held to have become generic.

The four categories of trademark distinctiveness and what each can be registered asThe four categories of trademark distinctiveness, arrayed in ascending order of eligibility for protection, and what each can be registered as. A generic term refers to the genus of which the particular product is a species and can never be registered, because as the court held, no matter how much money and effort the user of a generic term has poured into promoting the sale of its merchandise and what success it has achieved in securing public identification, it cannot deprive competing manufacturers of the product of the right to call an article by its name. Examples given by the trademark office are bicycle for bicycles, bagel shop for a bagel shop, and electronic ticket for computerized reservation and ticketing services. A descriptive term forthwith conveys an immediate idea of the ingredients, qualities or characteristics of the goods, and is barred from registration unless it has acquired distinctiveness through extensive use in commerce over many years. Examples given by the office are creamy for yogurt, apple pie for potpourri, and bed and breakfast registry for lodging reservation services. A suggestive term requires imagination, thought and perception to reach a conclusion as to the nature of the goods, and is entitled to registration without proof of secondary meaning; the office’s example is Coppertone for sun tanning products, contrasted with bronzer for suntan oil, which would be descriptive. An arbitrary term is an actual word with no association to the underlying goods, such as Apple for computers, which would be unregistrable for an apple orchard. A fanciful term is an invented word with meaning only in relation to its goods, such as Exxon for petroleum or Pepsi for soft drinks. Arbitrary and fanciful terms enjoy all the rights accorded to suggestive terms without any need to debate whether the term is merely descriptive. Crucially, the category attaches to the pairing of a word with a product rather than to the word itself, so a term may be generic in one market and descriptive, suggestive or fanciful in another; ivory is generic for a product made from tusks and arbitrary for soap. The classification can also change over time: the term escalator was originally fanciful or at least suggestive and was later held to have become generic.Four categories, in ascending order of protectionGeneric”Bicycle” for bicycles, “Bagel shop” for a bagel shopNever registrable. No amount of use or money changes this.Descriptive”Creamy” for yogurt, “bronzer” for suntan oilRegistrable only once it has acquired distinctiveness.SuggestiveCoppertone for sun-tanning productsRegistrable outright, no proof of secondary meaning needed.Arbitrary or fancifulApple for computers, Exxon for petroleumStrongest protection, easiest infringement case.The category attaches to the word-and-product pair, not the word. Ivory is generic for tusks, arbitrary for soap.
The line that matters runs between descriptive and suggestive, and it is one sentence long. Source : Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4 (2d Cir. 1976); USPTO, Strong trademarks (1976)

Test two: the bars that have nothing to do with anyone else

Three statutory bars catch names that no competitor is contesting, and founders walk into two of them constantly.

The statute refuses a mark which “when used on or in connection with the goods of the applicant is merely descriptive or deceptively misdescriptive of them”, or “is primarily geographically descriptive of them”, or “is primarily merely a surname”, or “comprises any matter that, as a whole, is functional”.

Primarily merely a surname. “Smith Consulting” is not registrable on the principal register as filed. Family-name businesses are the oldest naming convention there is, and it is the one the statute singles out.

Primarily geographically descriptive. Naming the company after the city it operates from is the second most common instinct and the second bar on the list.

There is a rescue, and its terms are specific. Acquired distinctiveness lets an applicant register a mark “which has become distinctive of the applicant’s goods in commerce”, and the office “may accept as prima facie evidence” of that “proof of substantially exclusive and continuous use thereof as a mark by the applicant in commerce for the five years before the date on which the claim of distinctiveness is made.”

Five years of substantially exclusive use. That is what a descriptive name costs, and it is a cost paid in the years when you have the least ability to defend the name against anyone using something similar.

Note what the rescue does not reach. It is available “except as expressly excluded in subsections (a), (b), (c), (d), (e)(3), and (e)(5)”. So it rescues descriptive, geographically descriptive and surname marks. It does not rescue functional matter, geographically deceptive marks, or, as established above, anything generic.

One further clause to know if the name is built on a person: registration is refused to a mark that “consists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent”. That clause was challenged and upheld by the Supreme Court in June 2024. Two neighboring clauses of the same section, on disparaging and on immoral or scandalous matter, were struck down in 2017 and 2019 respectively and are no longer applied, although the codified text still shows them. If you read the statute directly, read it with that in mind.

Statutory bars to trademark registration that apply without any competitor objecting, and which of them acquired distinctiveness can cureStatutory bars to trademark registration that apply without any competitor objecting, and which of them acquired distinctiveness can cure. The statute refuses registration to a mark which, used in connection with the applicant’s goods, is merely descriptive or deceptively misdescriptive of them; which is primarily geographically descriptive of them; which is primarily geographically deceptively misdescriptive of them; which is primarily merely a surname; or which comprises matter that as a whole is functional. Separately, registration is refused to a mark consisting of or comprising a name, portrait or signature identifying a particular living individual absent that individual’s written consent; that clause was challenged on constitutional grounds and upheld by the Supreme Court in June two thousand twenty four. Acquired distinctiveness offers a cure for some but not all of these bars. The statute provides that, except as expressly excluded for certain subsections, nothing prevents the registration of a mark used by the applicant which has become distinctive of the applicant’s goods in commerce, and that the office may accept as prima facie evidence of such distinctiveness proof of substantially exclusive and continuous use of the mark in commerce by the applicant for the five years before the date on which the claim of distinctiveness is made. The exclusions mean the cure is available for merely descriptive marks, for primarily geographically descriptive marks, and for marks that are primarily merely a surname. It is not available for geographically deceptively misdescriptive marks, nor for functional matter, nor for names of living individuals without consent, and it can never rescue a generic term, because a generic term is by definition the common name of the goods and no amount of use can deprive competitors of the right to call an article by its name. Two neighbouring clauses of the same statutory section, one barring disparaging matter and one barring immoral or scandalous matter, were struck down by the Supreme Court in two thousand seventeen and two thousand nineteen respectively and are no longer applied, although the codified text still displays them.Bars nobody has to raise against youThe barCurable by five years of use?Merely descriptiveYesPrimarily geographically descriptiveYesPrimarily merely a surnameYesGeographically deceptively misdescriptiveNoFunctional matterNoName of a living individual, no consentNoGenericNever
Acquired distinctiveness rescues three of these. It never rescues a generic term. Source : 15 U.S.C. 1052(c), (e) and (f); Vidal v. Elster, No. 22-704 (13 June 2024) (2026)

Test three: whether someone else already owns the space

The office states its own ranking plainly: a name that is confusingly similar to another mark, on related goods, is “the most common reason for refusing registration”. No published figure quantifies that share, so treat it as the office’s characterization rather than a statistic.

Two things decide it, and neither is a trademark search for exact matches.

The marks do not have to match. “Trademarks don’t have to be identical to be confusingly similar. Instead, they could just be similar in sound, appearance, or meaning, or could create a similar commercial impression.” Four ways to collide, only one of which a spelling search will catch. A name that looks nothing like an existing mark but sounds like it, or means the same thing, is in the same trouble.

The goods have to be related, and that is what saves most names. The office explains the coexistence rule with its own examples:

“This is how identical trademarks with different owners can be registered for Dove soap and Dove ice cream bars, or Delta faucets and Delta air transportation services.”

Its working test for relatedness: goods “could be related if they are identical, similar or competitive; used together; used by the same purchasers; advertised together; or sold by the same manufacturer or dealer.”

A 1973 decision enumerated thirteen factors bearing on the question, and the list gets cited as though all thirteen apply every time. The examination manual says otherwise, repeatedly. “Not all of the factors are relevant and only those relevant factors for which there is evidence in the record must be considered.” “The significance or weight of a particular factor may differ from case to case.” And, quoting a 2020 appellate decision, “Any single factor may control a particular case.” There is “no litmus rule which can provide a ready guide to all cases”.

What the manual does elevate are two factors as “key considerations in any likelihood of confusion determination”: the similarity of the marks in their entireties as to appearance, sound, connotation and commercial impression, and the relatedness of the goods or services as described in the application and registration. Everything else enters only if there is evidence for it.

The two key factors in a likelihood of confusion determination and the four ways two marks can be similarThe two key factors in a likelihood of confusion determination and the four ways in which two marks can be similar. The trademark office states that likelihood of confusion is the most common reason for refusing registration, arising where a mark is confusingly similar to another mark and the goods or services are related. On the first factor, marks do not have to be identical to be confusingly similar: they may be similar in sound, in appearance, or in meaning, or may create a similar commercial impression. This means that a name which looks nothing like an existing registration on paper may still be refused because it sounds like it or conveys the same idea, and a search for exact spellings will not detect either. On the second factor, goods or services may be related if they are identical, similar or competitive, if they are used together, if they are used by the same purchasers, if they are advertised together, or if they are sold by the same manufacturer or dealer. Because relatedness is required as well as similarity, identical marks owned by different parties can coexist across unrelated categories; the office’s own examples are the same word registered separately for soap and for ice cream bars, and the same word registered separately for faucets and for air transportation services. A nineteen seventy three decision enumerated thirteen factors bearing on likelihood of confusion, and that list is frequently cited as though all thirteen were applied in every case. The examination manual states the contrary: not all of the factors are relevant, only relevant factors for which there is evidence in the record must be considered, the weight of a particular factor may differ from case to case, and any single factor may control a particular case. The manual identifies only two factors as key considerations in any determination, namely the similarity of the marks in their entireties as to appearance, sound, connotation and commercial impression, and the relatedness of the goods or services as described in the application and registration.Similar marks, related goods. Both, or no refusal.Four ways marks are similarSoundAppearanceMeaningCommercial impressionWhen goods count as relatedIdentical, similar or competitiveUsed together, or by the same purchasersAdvertised togetherSold by the same maker or dealerA spelling search catches one of the four. Sound, meaning and impression are the ones that surprise people.And on the thirteen-factor list: “Any single factor may control a particular case.”
Thirteen factors get cited. Two are described as key in any determination, and one factor can decide a case alone. Source : USPTO, Likelihood of confusion; TMEP 1207.01 (current edition); In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 1361 (C.C.P.A. 1973) (2026)

Test four: what filing costs, now that the tiers are gone

The fee structure changed in January 2025, and most published guidance still describes the old one. The two-tier electronic filing options were abolished. There is now a single base application at $350 per class, with three surcharges that stack.

ItemAmount, per class
Base electronic application$350
Surcharge: incomplete information+$100
Surcharge: free-form description of goods+$200
Surcharge: each additional 1,000 characters of description+$200
Paper filing$850

The base fee only holds if the application satisfies twenty listed requirements, the last of which is using a description of goods and services drawn from the office’s own acceptable identification manual. Departing from that manual costs $200. Omitting any of the other nineteen items costs $100. Writing a long custom description costs $200 per thousand characters beyond the first thousand.

A single-class application prepared badly therefore costs $350 + $100 + $200 + $200 = $850, against $350 for the same application prepared properly. The difference is not legal skill. It is picking your description from a list.

Other fees worth budgeting: a statement of use is $150 per class, each six-month extension request is $125 per class, and an opposition or cancellation proceeding is $600 per class.

Filing before you have sold anything

You do not have to wait until the product ships. An applicant “who has a bona fide intention, under circumstances showing the good faith of such person, to use a trademark in commerce” may file, supported by a verified statement of that intention.

The reason to do it is not in the filing provision. It is in a separate section, and it is the strongest thing in the whole system for a company that has picked a name but not yet launched:

“Contingent on the registration of a mark on the principal register… the filing of the application to register such mark shall constitute constructive use of the mark, conferring a right of priority, nationwide in effect, on or in connection with the goods or services specified in the registration against any other person”

Priority backdates to the filing date, across the country, provided the application eventually registers. You reserve your place in the queue before your first sale.

The obligations that follow are on a clock. Within six months of the notice of allowance you must file a verified statement that the mark is in use, with specimens and a first-use date. One further six-month extension is granted as of right on written request. Beyond that, the office “may, upon a showing of good cause… further extend the time… for periods aggregating not more than 24 months”. Six plus six plus twenty-four gives a hard ceiling of thirty-six months after the notice of allowance, each extension carrying a fee and a renewed verified statement of continued bona fide intention. Miss a deadline and the application is abandoned unless you can show the delay was unintentional.

The intent to use timeline and the trademark office’s reported processing timesThe intent to use timeline and the trademark office’s reported processing times. An applicant with a bona fide intention to use a mark in commerce may file an application before making any sale, supported by a verified statement of that intention. If the application ultimately registers, the filing constitutes constructive use of the mark and confers a right of priority nationwide in effect, dating from the filing, against any other person other than one who had already used the mark, already filed an application, or already filed a qualifying foreign application. After the office issues a notice of allowance, the applicant must file within six months a verified statement that the mark is in use in commerce, together with specimens and the date of first use, at a fee of one hundred and fifty dollars per class. One further six month extension is granted as of right on written request before the first period expires. Beyond that, the office may on a showing of good cause grant further extensions aggregating not more than twenty four months, so the absolute ceiling is thirty six months from the notice of allowance. Each extension request costs one hundred and twenty five dollars per class and must be accompanied by a verified statement of continued bona fide intention to use the mark. Failure to file either the statement of use or a timely extension request results in abandonment of the application unless the applicant can show the delay was unintentional. On processing times, the office reported for the third quarter of fiscal year two thousand twenty six an average first action pendency of four point two months against a target of five months and a long term goal of four point five months, an average total pendency of nine point eight months against a target of eleven months, excluding applications previously suspended or involved in contested proceedings, and eleven point three two months when those are included, against a target of fourteen months. Applications filed through the international route receive a first action considerably faster, at one point six months, but take substantially longer overall, at twelve point six months of total pendency compared with seven point eight months for a standalone domestic filing.Two clocks: one you win, one you have to beatAfter the notice of allowance6 monthsstatement of use due, $150 per class+6 monthsextension as of right, $125 per class+24 monthsfurther extensions on good cause only36 months maxWhat the office reports it is taking, Q3 FY2026First action4.2 monthsagainst a 5-month targetTotal, excluding contested cases9.8 monthsagainst an 11-month targetTotal, including them11.3 monthsagainst a 14-month target
Priority runs from the filing date. The clock to prove real use runs from the notice of allowance. Source : 15 U.S.C. 1051(b) and (d), 15 U.S.C. 1057(c); USPTO Trademarks Dashboard, Q3 FY2026 (2026)

The domain is not the name

Two propositions, both sourced, that people routinely collapse into one.

Owning the domain gives you nothing. The examination manual is explicit that neither the protocol prefix nor the top-level domain carries any source-indicating significance, because “those designations are merely devices that every Internet site provider must use as part of its address.” And a domain-based mark registers “only if it functions as a source identifier”, presented so that buyers perceive it as indicating source “and not as merely an informational indication of the domain name address used to access a website”. Two board decisions apply this: a term used “only as part of an address by means of which one may reach applicant’s website, or along with applicant’s other contact information on letterhead” does not function as a mark.

Owning the mark is what lets you challenge a domain. The mandatory domain dispute procedure requires the complainant to prove three elements, and the word joining them is “and”:

“(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and (ii) you have no rights or legitimate interests in respect of the domain name; and (iii) your domain name has been registered and is being used in bad faith. In the administrative proceeding, the complainant must prove that each of these three elements are present.”

Three cumulative elements, and the first one requires a mark. There is no route through that procedure for someone who merely wanted the name. Note also the defense in the other direction: a registrant who has “been commonly known by the domain name, even if you have acquired no trademark or service mark rights” is protected. And the policy places the clearance burden on whoever registers the domain: “It is your responsibility to determine whether your domain name registration infringes or violates someone else’s rights.”

The asymmetry between owning a domain name and owning a trademarkThe asymmetry between owning a domain name and owning a trademark. Registering a domain name confers no trademark rights whatsoever. The examination manual states that neither the beginning of the address nor the top level domain has any source indicating significance, because those designations are merely devices that every internet site provider must use as part of its address. A mark composed of a domain name is registrable only if it functions as a source identifier, meaning it must be presented on the specimen in a manner that potential purchasers will perceive as indicating source, and not as merely an informational indication of the address used to access a website. Two board decisions apply this: one held that a term used only as part of an address by means of which one may reach the applicant’s website, or alongside the applicant’s other contact information on letterhead, does not function as a mark; another refused a mark consisting of a full web address shown on letterhead and a business card, on the ground that a term which only serves to identify the applicant’s domain name or the location on the internet where the applicant’s website appears, and does not separately identify the applicant’s services, does not function as a service mark. In the other direction, owning a trademark is precisely what allows a party to recover a domain. The mandatory administrative domain dispute procedure requires a complainant to prove three cumulative elements: that the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights, that the registrant has no rights or legitimate interests in respect of the domain name, and that the domain name has been registered and is being used in bad faith. The policy states expressly that the complainant must prove that each of these three elements is present. A registrant who has been commonly known by the domain name, even without having acquired any trademark rights, has a defense. The policy also places the clearance burden on the person registering the domain, stating that it is their responsibility to determine whether the registration infringes or violates someone else’s rights.The rights only run one wayYou own the domainNo trademark rights at all.A term used only as the address whereyour site is found does not functionas a mark, so it cannot be registered.You own the markYou can go after the domain.But you must prove all three: similardomain, no legitimate interest of theholder, and bad faith. All three.And the clearance duty sits with whoever registers the domain, not with the mark owner:“It is your responsibility to determine whether your domain name registration infringes… someone else’s rights.”
The rights run one way. A mark can be used against a domain; a domain cannot be used against anything. Source : TMEP 1215.02 and 1215.02(a) (current edition); In re Eilberg, 49 USPQ2d 1955 (TTAB 1998); ICANN Uniform Domain Name Dispute Resolution Policy, 24 October 1999, paragraphs 2 and 4 (1999)

The grid

Run any generated name through five questions, in this order.

Does it forthwith convey an idea of what you sell? If yes, it is descriptive and you are buying five years of substantially exclusive use before you own it. Reject it, or accept that cost knowingly.

Is it the founder’s surname, or the city? Both are named bars in the statute. Same five-year rescue, same cost.

Does anything in your category sound like it, look like it, or mean the same thing? Four ways to collide, and a spelling search only catches one. Say the shortlist out loud, and translate it.

Is your description of goods available in the office’s own manual? If not, writing your own costs $200 per class, and a long one costs $200 more per thousand characters. This is the cheapest thing on the list to get right.

Have you filed on intent to use? Priority runs from the filing date, nationwide, before your first sale. First action is currently averaging 4.2 months, total under ten. The clock to prove real use only starts at the notice of allowance, and it runs for up to three years.

The name that survives all five will be less obvious than the one the generator ranked first. That is the trade, and it is not a matter of taste: the immediacy that makes a name feel right in a list is the same immediacy that makes it unregistrable. A less literal name only works when something else does the explaining, which is why the naming step belongs with the positioning that has to carry a word buyers cannot decode on sight.