We all know how important a brand, or trade mark, is. It is your identity, the image projected to your customers. Over time, this image becomes associated with a level of credibility and quality. It becomes associated with the emotional response you evoke from your customers. You want your brand to be unique. And you want to be able to stop others from copying your brand.
This article offers a few tips for new businesses (and for existing businesses with a new product or service) on how to select a ‘good’ trade mark.
New business owners have the problem of little or no brand recognition in the market. It can be tempting to select a brand which is very descriptive of what they do. But this has its drawbacks.
A descriptive brand is usually less distinctive and so less memorable. Any trade mark that relates to a common surname, a basic slogan, or describes the nature, kind or quality of what is being offered is less distinctive. The public may not regard such trade marks as exclusive to your company. The trade mark is also harder to protect. Under trade mark law, a descriptive or non-distinctive trade mark is not registrable.
Another issue with descriptive brands is that they tend not to be future-proof. Google could have called itself Fastsearch when it was founded in 1998. But that would be a poor brand to use for the myriad of products and services it offers today. You want your brand to be sufficiently robust to support the business as it expands and diversifies.
Made-up words can be particularly distinctive. By definition, they are not descriptive, and phonetic or poetic tricks can be used to enhance their distinctiveness. As an example, the brand Kodak begins and ends with a punchy ‘k’ (in fancy terms, a voiceless velar plosive). It is usually best to keep to a maximum of two syllables to be more memorable.
Or you could choose an ordinary, well-known word but which is unrelated to the goods and services involved. Examples include Apple, Orange and Blackberry, and that’s just the fruit! The advantage is that the word itself does not have to be unconsciously memorised by customers over time, only its association with the goods and services.
If you’re still concerned with adopting a made-up or unrelated word when you have no brand recognition, and you wish to avoid descriptive trade marks, you could opt for a middle ground. In which case, select a brand that alludes to the company, goods or services but which does not describe them. An example of this is Easyjet: there is no such thing as an easy jet even if, say, the booking of a flight is easy.
People often think they can simply intentionally mis-spell a word (such as change an ‘s’ to a ‘z’) or omit spacing (such as in Easyjet). In reality, this makes little difference when you try to register the trade mark. Trade marks are assessed for their literal (how it looks), phonetic (how it sounds) and their conceptual (what it means) similarity to existing registered brands and descriptive words. You may or may not think Bytes is a clever brand for selling dentures but it may be difficult to register the brand.
Nevertheless, it is often possible to select a brand which is already in use for completely different goods and services. Penguin books and Penguin biscuits are unrelated entities and few people would be confused into thinking they come from the same source. But this is not a licence to appropriate an established company’s reputation, so don’t try selling a Coca-Cola range of garden furniture! Under trade mark law, well-known brands enjoy an extra level of protection such that they cannot be used even for dissimilar goods and services.
Once you have, while taking account of all the above points, picked a brand you like, you need to check that it is free for use. You should search the internet (and Companies House if it is going to be your business name). But this is not enough. You should also search official trade mark registers. For instance, you can carry out your own free online search on the UK Intellectual Property Office’s website. The official register comprises UK and European trade marks. For further peace of mind, you have the option of asking an IP firm (such as Scintilla) to carry out a full clearance search. If the searches are clear, you can proceed to register the trade mark.
All this should be done early on, preferably before you spend a penny on designing your corporate literature and website and marketing the new brand. As well as being a waste of money, a business owner can often become emotionally attached to a particular name and is reluctant to drop it, despite being told it will be difficult to register or is similar to an existing brand.
As a final example, the brand Scintilla is, I am sure you would agree, a distinctive brand. It is an existing word. But, unlike Apple, it is not a well-known word. People often say they have heard of the word but would struggle to define it. Scintilla means a small spark. This alludes to creativity and also a small thing (spark) which can grow to become something much bigger (a flame). It may take a little more intellectual effort for people to remember the word. But, from a psychological view, once they have done this, the brand will hopefully have more resonance and staying power. Hopefully!