Distinctive generally applies to any coined or fanciful word or term that does not closely resemble an existing mark. No mark will receive trademark protection if it is a common or descriptive term used in the marketplace. To receive trademark protection, a mark must be used in the marketplace. If two or more marketers claim ownership of a certain mark, the first user of the mark will usually receive the protection. However, if the mark is known only in a limited geographic area, it may not receive protection in areas where it is unknown to consumers.
Infringement occurs if a mark is likely to cause confusion among consumers.
Defenses to infringement include fair use and collateral use. Fair use occurs when the second user, or repossessor, uses a protected mark in a nonconspicuous way to identify a component of a good or service. For example, a restaurant can use a protected mark to advertise that it serves a particular brand of soft drink without infringing the mark. The restaurant cannot, however, identify itself by the mark without infringing the mark. Collateral use is use of the same mark in a different market.