At first glance, trademark law in the United States and the United Kingdom appears closely aligned. Both jurisdictions rely on the same core principle: a trademark must distinguish one business from another. Yet when it comes to descriptiveness, applicants often discover that the two systems apply this principle in very different ways.
The question many brand owners ask is simple: which jurisdiction is harder?
The answer, as with most trademark issues, depends on how you look at it.
How the United States Treats Descriptive Marks
In the US, the concept of descriptiveness is closely tied to consumer perception. The USPTO examines whether a mark immediately conveys information about the goods or services. If it does, the mark is considered descriptive and, in principle, unregistrable on the Principal Register.
However, US law offers a significant safety valve: acquired distinctiveness, also known as secondary meaning. A descriptive mark can be registered if the applicant proves that consumers associate the mark with a single commercial source.
In practice, this means that long-term use, substantial sales, advertising expenditure, and consumer recognition can transform a weak mark into a registrable one. The US system is demanding in terms of evidence, but conceptually flexible.
The UK Approach: Less Forgiving, More Predictable
The UKIPO takes a more categorical view. If a sign describes the characteristics of the goods or services, that is often the end of the analysis.
While UK law also recognizes acquired distinctiveness, the threshold is notably higher. The evidence must show that the mark functions as a badge of origin across the entire UK, not merely among a segment of consumers.
In practice, this makes descriptiveness a harder obstacle to overcome in the UK. Even marks that have achieved commercial success may fail if they still appear descriptive in everyday language.
Different Philosophies, Same Goal
The contrast reflects deeper legal philosophies. The US system prioritizes market reality: if consumers recognize a descriptive term as a brand, the law may eventually accept it.
The UK system places greater weight on keeping descriptive language free for all market participants. From this perspective, granting exclusive rights over descriptive terms is seen as inherently risky.
Which Jurisdiction Is Harder?
For new brands, the UK is often the tougher environment. Descriptive marks are more likely to be rejected outright, with limited room for rehabilitation.
For established brands, the US can be harder. Proving acquired distinctiveness requires extensive documentation, time, and expense.
Ultimately, neither system is easier. They simply test applicants in different ways.
