The legal definition of a trade mark is any sign, capable of being represented graphically, which can distinguish goods or services of one undertaking from those of other undertakings.
A trade mark can be a word, a phase, a symbol, a colour or a combination of these elements, but the question is what makes a good trade mark. We know that a trade mark can be many different things but what makes some trade marks better than others?
For the purpose of this article, we will refer to a trade mark as a brand name since many brand owners use these terms interchangeably.
The most important piece of advice a Trade Mark Attorney can provide is that a brand name should be distinctive when used in connection with the goods/services in question. This means that the brand name should be unique when used in connection with the goods or services to be sold using that name. The reason that this is so important is because, if it is unique, the brand will distinguish your goods and services from those of your competitors and will serve as a badge of origin.
FANCIFUL or COINED
The best brand names are those that are completely made up, fanciful or coined. This means that the brand name is inherently distinctive, having never existed before it was thought-up or created for that purpose. Often these types of brand names can be a combination of words which, when put together, are completely unique. An example of a fanciful brand name is KODAK, while an example of a newly coined brand name is FACEBOOK.
These types of brands are also the easiest to be registered. Most trade mark offices examine trade mark applications on the grounds of distinctiveness. It is logical therefore, that if the brand name chosen is a made up or newly coined word it is also distinctive and will achieve registration easily. Of course, this type of creativity might take a bit longer but taking that extra time and perhaps engaging a marketer will pay off in the end.
The next type of brand name that will function as well as a fanciful brand name and is likely to become a strong brand leader and be a badge of origin is one that is formed by a word or words that are not normally considered to be connected to the goods or service in question. An example is APPLE; we all recognise APPLE as the fruit we eat each day if we want to keep the doctor away, but when used in connection with computers it is distinctive. The very fact that it has no meaning in relation to computers means that it functions brilliantly as a brand name. These types of brands are easily registrable because they are distinctive in connection with the goods of interest.
LESS EFFECTIVE TRADE MARKS
Although many brand owners wish their potential customers to know what it is they are selling, it is important not to create a brand name that is descriptive; e.g., developing the brand name RED CARROTS for carrots would be descriptive. Such marks will not be registered and will not serve as a badge of origin. There are likely to be many red carrots on the market and therefore by using this brand name the potential customers would not be able to distinguish these goods from those of its competitors.
Do not choose a brand name that is the same or similar to competitor brand names. You do not want to create confusion in the market place and potentially infringe third party rights. You want your brand name to stand out and be recognised as unique in the market place. As your brand name becomes well known and established, so too will your reputation and the degree to which your customers see your brand and stay loyal to it because it creates satisfaction and stands for quality.
Overall, the process of creating a brand name is not a simple one and requires creativity and a strategic plan. Take some time to think about your product and what you want it to represent.