“WOULD YOU RATHER…?” Is this Trademark Distinctive?

A mark MAY be registered if it is fanciful, arbitrary or suggestive. A mark may NOT be registered if it is generic. In order for a descriptive mark to be registered, it must have acquired a secondary meaning in commerce.

Evaluation of whether a mark is suggestive or descriptive is done under two tests: the “imagination test” (is the imagination or a mental leap required order to reach a conclusion as to the nature of the product) and the “competitors’ needs test” (the extent to which a mark is actually needed by competitors to identify their goods or services).