The nature of your mark will have a direct influence on its performance in the market and in turn will influence the legal protection it is entitled in the courtroom.
In evaluating the strength of the mark, courts will consider both conceptual and commercial strength. Conceptual strength refers to how distinctive and unique the mark is. The more fanciful a mark is (e.g., Exxon, Kodak, and Xerox), the greater the probability of the mark being a strong mark that deserves protection. When a mark is not unique (e.g., Apple, Lotus, Sun) and commonly used across multiple services, it is considered weak. Commercial strength, on the other hand, is determined based on a business’ number of sales, advertising expenses, and scope of advertising. For example, even though Apple’s mark might be considered weak in terms of conceptual strength, it is likely still strong for determining “likelihood of confusion” because of its commercial strength.