Document Type
Article
Publication Date
2026
Publication
Berkeley Technology Law Journal
Volume
41
Abbreviation
Berkeley Tech. L.J.
First Page
555
Abstract
Under its Abercrombie spectrum, trademark law grants “arbitrary” marks—like APPLE for computers or AMAZON for retail—its highest form of protection, treating them as equivalent to fanciful marks such as KODAK or EXXON. This Article challenges that foundational assumption. Unlike fanciful marks, which are invented and enjoy strong source-identifying capacity due to their novelty, arbitrary marks draw on existing language through catachresis: a rhetorical move that repurposes a common word in novel commercial context. In doing so, arbitrary marks generate layered metaphoric meanings that more closely resemble the associative leaps of suggestive marks, rather than the invented distinctiveness of fanciful ones.
Empirical research supports this reframing. Studies show that arbitrary marks underperform in measures of consumer recognition and brand clarity, casting doubt on their presumed strength. Yet despite these shortcomings, they remain doctrinally privileged—largely, this Article argues, because the trademark system needs them. With trademark depletion and congestion accelerating, arbitrary marks offer a convenient legal loophole, allowing brand owners to appropriate familiar language without the evidentiary burden of proving secondary meaning. As a result, brand owners are incentivized to choose arbitrary marks for their high protectability grades, often to their own market detriment.
This dynamic also carries broader cultural costs. When ordinary words like AMAZON or APPLE become proprietary, they displace shared meanings, subordinating public language to private branding. Trademark law, in this way, channels cultural symbols into commercial use to keep pace with semiotic demand. This Article argues for a doctrinal recalibration: arbitrary marks should be treated as presumptively weaker than fanciful ones—at or around the level of suggestive marks. More broadly, this inquiry exposes the conceptual fragility of the Abercrombie spectrum itself, and calls for a more honest reckoning with the values trademark law protects—and those it displaces.