This acquisition of secondary meaning is sufficient to make a mark distinct, meaning that in the eyes of consumers it has come to represent that products bearing the mark come from a particular source. A suggestive term, rather than describing the product, merely makes a subtle suggestion about the type of product and its qualities. It requires consumers to use their imaginations to make the intellectual jump between the suggestion and the actual product. For those reasons, it can be a trademark immediately upon use. When distinguishing between descriptive and generic terms, courts try to determine the viewpoint of the prospective consumer.
Courts look for the meaning that the buyer of a product assigns to the contested word.
Courts may also look at the term as used by dictionaries, third parties, trademark owners, texts, patents, newspapers, literature, and surveys. Use of a term as a common name indicates that the word may be the generic name of a product. The strongest marks are arbitrary and fanciful marks, which need not acquire secondary meaning. They are strong because they bear little or no relationship to the products with which they are affiliated, and thus their use is not unfair to others trying to compete in the marketplace with similar products. Arbitrary marks are common words used in an uncommon way and are used in connection with the goods in a way that does not describe the goods or suggest anything about them.