Branding New Technology

It is fairly common for inventors to create a completely new product that has never existed before (I freely admit to being incredibly impressed by the creativity of some of my clients), but often, right after the new product is made, the question of branding comes up. This isn’t a new issue for IP attorneys, but it recently came up with one of my clients - and I successfully canceled a competitor’s trademark on this basis in an unrelated case - so I would like to address that today.

Let’s say you design a smart bandage that automatically applies a preferred pressure on a wound that is dependent on the type of wound it detects, and you call it a smart bandage** during the course of designing and testing. And then you take this name a step further and call it a smart bandage in a utility patent application.

Can you turn around and trademark the name SMART BANDAGE?

The short answer is no.

Why? Everything must have some sort of generic name so people can identify it in ordinary language, and, in the design phase, you have established that “smart bandage” is the generic name for your product that detects a wound type and automatically applies an ideal pressure. (By analogy, you can’t trademark the word CAT for a cat.)

So, what to do? You must amp up the creative process and come up with another name that can be registered as a trademark. Maybe it’s the SynthiSkin*** smart bandage?

** There is a smart bandage product available, but not with the sensing and smart technology I made up for this post.

*** I asked ChatGPT to create fake technologies and fake trademarks, and - fun fact - learned that ChatGPT is both (a) uncreative and (b) absolutely loves words with Aero, Terra, or Neuro in them. Most of the “fake” technologies are already real things - like, for example, smart fabric, while the fake trademarks, like SynthiSkin, are actually borrowed from sci-fi or fantasy stories - in this case, Wing Commander, a 1999 sci fi.