Standing out in the market can sometimes be challenging, even though there are ways to succeed in it. Almost every company strives to find that one element that sets them apart from their competitors, and often they seek that one thing to be something other than price. However, even if a company offers highly innovative quality products or excellent customer service, it may not be enough to differentiate the company from others if the company has not created a strong and distinctive brand.
Building a brand is a long-term effort, but the choices made in the early stages can impact how strong and well-known the brand can develop later.
The words brand and trademark are sometimes used synonymously, but it is important to understand the difference between them when discussing differentiation on the market. A brand refers to the broader perception or experience people have based on a company's products, services, communication, visual appearance, soundscape, and other brand elements.
Trademarks, on the other hand, are often an essential part of a company's brand, as trademarks help the target public to distinguish the company's products or services from those of others. Trademark registration may be applied for distinctive signs related to the company's brand, such as names, logos, slogans, and even colors or sounds that the public consistently associates with a particular company's products or services. Additionally, the appearance of a product can be protected by a design right and sometimes by trademark as well. Nowadays, domain names are also an important part of a company's brand, for the company and its products and services to be found online and also due to the significant growth of e-commerce in recent years.
When planning an entirely new brand, it is, of course, crucial that the target public finds the brand and associates it with the products and services offered under that brand. You may be tempted to choose a name that best describes the products and services or their positive attributes. However, this may not be the best solution for brand building from a long-term perspective and especially for differentiation. Distinctiveness is also a crucial requirement for trademark registration, so aiming for certain degree of originality is beneficial for this reason as well.
Although there might not be a completely exhaustive answer to what makes a sign distinctive, there are good guidelines. The most distinctive trademarks are completely fictitious and invented names that do not refer to the products or services offered under the mark in any way with (e.g., ABLOY for locking solutions). Strongly distinctive marks are also familiar words used in a completely different context (e.g., APPLE for computers). Registrable are also so-called suggestive marks, which do not directly describe the product or service but may give a hint about its characteristics (e.g., OATLY for oat-based products). Suggestive marks can work well both from a marketing and trademark law perspective.
Conversely, non-distinctive or weak marks, which are difficult to protect and obtain exclusive rights to, are marks that describe the product or its characteristics, such as type, quality, purpose, quantity, or origin (e.g., APPLE for apple juice). A mark that has become a commonly used name in the trade for a particular product or service is also not considered distinctive. For example, KÄNNYKKÄ (“mobile phone” in Finnish) and MONO (“ski boot” in Finnish) were once registered trademarks in Finland. Figurative marks can also be non-distinctive if the word or phrase in the mark is descriptive, and the figurative elements are not sufficient to make the mark distinctive overall.
A distinctive trademark helps in building a stronger brand that consumers recognize and distinguish from competitors. Whereas, if a mark lacks distinctiveness, there is a risk that competitors will start using the same or a similar descriptive sign without that there is a possibility to stop them. A non-distinctive sign can sometimes become an established trademark over time, but this involves a lot of uncertainty and often significantly higher costs.
An essential part of building a strong brand is identifying one's own differentiation factors and competitive advantage. Making an innovative brand known to public may at first require slightly more investments in marketing, but when the groundwork is done well the brand is more likely to develop strong and memorable. However, it is important to remember that maintaining strong trademark rights (as well as maintaining other strong brand elements) requires proper use of the trademarks and continuous monitoring of rights, and also intervening in potential infringements when necessary.
Do you need help in choosing a distinctive trademark and comprehensive protection of your brand? We are pleased to conduct customized preliminary trademark searches to meet your needs. Additionally, we assist you with protecting and enforcing your brand at all stages of your brand's lifecycle. Contact us for guidance!