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As a patent attorney, it is easy to expect everyone to be expert about brands.  This belief is reinforced by listening to my nine year old daughter and friends, who are expert at distinguishing between brands.  However, often I am reminded that most people – even those who design brands and marketing materials – often do not know what a brand or trademark is - (for this article I’ll use brand and trademark interchangeably).

So what is a trademark?  In the Trades Mark Act, a trademark  is “a sign which is capable of distinguishing goods or services as having a particular trade origin”.

It is those last words which are most important – “having a particular trade origin”.  A trademark does not tell you what the product is – it tells you where it originates.  Think of the brands Ajax and Handy Andy.  Could a visitor to this country actually work out what the products are from the brands?  No.  The important thing, as far as trademarks are concerned, is that the public is informed that they are likely to come from different sources.  Just as McDonalds fast food is from a different franchise and company than Burger King, or KFC.  That is the role of a trademark.

That, also, is why brands are so important.  If you are in business, your trademark lets people know that you are different to your competitor.  If your sign-writing, marketing, and advertising are effective then they are not going to end up at your competitor if they are looking for you – if you’re shopping for McDonalds, you are not going to end up at KFC by mistake.  Your brand is your personal or business identity, and informs people who stands behind the product or service.

What a trademark isn’t.

A trademark does not tell you what the product is.  If you look at any well designed product label, or sign above a business premises, you’ll notice there are two portions identifying the product or premises – the trademark, followed immediately by a description of what the product is or the business does.  Here are some examples: 

• “Handy Andy liquid cleanser” - Handy Andy is the brand, and liquid cleanser describes the product;
• “Jim Beam Kentucky bourbon whiskey” - Jim Beam is the brand (and lets you know it’s not Jack Daniels) while ‘Kentucky bourbon whiskey’ tells you what the product is;
• “IPRIMA Patent & Trade Mark Attorneys” – IPRIMA is our trademark and differentiates us from our competitors, while ‘Patent & Trade Mark Attorneys’ tells people what we do.

It’s all quite simple really, but there is an enormous temptation not to use these rules.  So what happens if you don’t follow the rules – well that’s a story for another article, but quite simply, you could end up having no rights to your brand and with anyone (including your competitors) being able to use your brand on their own products.  A harsh lesson that’s even caught multi-nationals out.