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What is a trade mark?

By Sarah Chattereley.

A trade mark is a sign which can be graphically represented, and which identifies the goods and services supplied under it as originating from YOU. This is important, as the same or similar products or services provided by others may be of inferior quality, and your trade mark will distinguish you from them. Your trade mark will also help you win and keep your customers. A distinctive and memorable trade mark helps your customers remember who they bought from and come back for more, and your prospects will remember your mark from your marketing.

A trade mark can take a number of forms – amongst other things, words, pictures, names, domain names, numbers, logos, straplines, colours, smells, sounds, music, patterns or shapes can all be used and registered as trade marks.

What do the best trade marks all have in common?

They’re all meaningless, short, easy to say, easy to spell and have stood the test of time. George Eastman, the founder of Kodak, when asked about the strange, made-up word he had picked for naming his cameras said “it does not resemble anything in the art and cannot be associated with anything in the art except Kodak”.

So, how do you think up a really good trade mark?  How do I choose a trade mark which will make me stand out?

If you coin a trade mark which is distinctive, i.e., it is unusual, and it doesn’t describe the features of what you do or sell, then it is likely that your customers and prospects will be more able to remember it.  It also means that you would be able to protect it more easily with a registration. If your trade mark is a made-up word or phrase, it will also be harder for someone to copy your trade mark without it being obvious that they have seen it first. So, the more inventive, distinctive and novel the trade mark, the more difficult it should be for someone to claim that they came up with something similar or the same on their own.

 These hints should help you come up with something new.

  • A trade mark can take a number of forms – amongst other things, words, pictures, names, domain names, numbers, logos, straplines, colours, smells, sounds, music, patterns or shapes, can all be used and registered as trade marks.
  • The best trade marks are invented words - PERSIL and HARPIC are both contractions of several words – PERborate SILicate (the chemical composition) and HARry PICk, (who first owned that particular business).
  • DON’T describe your products or services with your trade mark, so don’t call it by its generic name, where it comes from, its value, quality, shape, what it is made from or what it does.  The best trade marks are eye catching, memorable and tell you nothing about the product or service.
  • Before you launch your trade mark, make sure that no-one else is using the same or anything similar already – and don’t think that just by altering a minor part of someone else’s mark they won’t object! Just consider how you would react if this happened to you! Seriously though, adopting someone else’s mark could result in you having to rebrand once they hear about it.
  • Sometimes adopting a mark which is only similar, or identical to a well known mark will be objectionable even if it is used for goods or services not usually sold under that trade mark. (Please contact us for more information about pre-filing and pre-use trade mark advice and searching).
  • Don’t pick something which looks like it will become a common term in your particular market, as the “foreseeability” of it becoming descriptive is also a consideration in whether it can be registered. You may find that even if you get a registration you will be paying a lot in future to defend it, as everyone will legitimately want to use it to describe their services or products, eg “ISP” for internet service provider, “cloud” for computing.
  • Do make your trade mark memorable – you need your customers and your prospects to be able to easily remember you and not your competitors. Again, an invented mark is likely to be more memorable.
  • If you do want to use some descriptive term in your trade mark then add distinctive wording too, so that it stands out from the rest. A logo, stylised script or drawing will also add distinctiveness.
  • Consider other aspects of your goods and services – look at whether the get-up or appearance of your products are what makes them stand out and register the look of the packaging, including wording and colours, the logo alone or the shape of the container, if these are unique to your business.
  • Check the meaning of your trade mark in other languages! Sales of some products have been scuppered by the meaning of a trade mark in other languages!

Remember that using something distinctive as a trade mark is what gives you the right to stop other people from using something identical or similar in your market.

If you’d like any help or advice about deciding on a new trade mark, or getting one registered then give us a call on 01788 547389.

This news item may contain information of general interest about current legal issues, but does not contain legal advice.