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Choosing a brand name can be the make or break of a business. How did iconic brands like Google, Apple, Microsoft and Coca-Cola get it right? In this article we answer questions frequently asked about brands, what it takes to choose a good brand name and how to avoid the pitfalls.
What is a brand?
The UK Intellectual Property Office (IPO) describes a brand as 'a promise of an experience which conveys to consumers a certain assurance as to the nature of the product or service they will receive'. A brand can be a company's most valuable asset as it will set it apart from competitors offering virtually identical products and services. The terms 'brand' and 'trade mark' are often used interchangeably but, in a strict legal sense, a trade mark is any sign which is capable of distinguishing goods or services of one undertaking from those of another undertaking whereas the definition of brand broader and less precise. The best way to protect a brand name is to register it as a trade mark at the IPO (or equivalent in other countries).
What makes a good brand name?
When selecting a brand name it is instinctive to think of words that describe the product or service in question such as SWEET for confectionery or RAPID for delivery services. Such words are descriptive, non-distinctive and unlikely to make successful brand names. Most iconic brand names are either invented words or an everyday word that does not relate to the product in question eg Google, Microsoft, Amazon and Apple. These names are catchy, memorable and over time have built very strong association with certain types of products.
Generally, words that describe the goods and services being sold cannot be registered as trade marks because it would be unfair to give one trader the ability to prevent other traders from describing their products. Therefore if your brand name is descriptive, a competitor could use it and thereby exploit your brand and benefit from any confusion among consumers.
Is it offensive?
It might seem a matter of common sense to avoid offensive brand names but businesses do slip up. Do you know what your desired brand name means in other languages? Mitsubishi used the brand name PAREJO without realising its offensive meaning in Spanish. A simple online search should show if an invented word has a meaning in another language. If you are an edgy brand looking for a controversial name, use caution and take legal advice. French Connection's FCUK brand gave rise to lots of complaints although ultimately it was ruled inoffensive by the IPO who upheld the trade mark registration.
Is it deceptive?
Deceptive brand names can generate negativity among misled consumers and in all likelihood a trade mark application will fail. Often brand names are deceptive because they are misleading about place of origin. For example, the trade mark application for SOMERSET GOLD for cider was refused because the area had a special reputation for cider and the applicant's product was not from this area. Brand names can also give a misleading impression about quality. For example BRASSFIT was refused for 'plumbing fittings' because brass fittings are perceived as better quality than alternatives.
Can I use my initials or surname?
There is nothing stopping you using your own name (eg WHSmith) but often surnames can sound generic and non-distinctive. You might not be able to stop people with the same name competing against you even if you have a trade mark registration because they may be legally entitled to use their own name.
What about using the names of cities or regions?
Using the names of geographical areas can be problematic. From a practical point of view, a brand name such as ROMFORD TYRES might seem strange if your business expands into new geographical areas and you would not be able to prevent competitors from using the geographical description. The IPO will not register marks that consist solely of a geographic indication.
Is it better to invent a word?
An invented word can side step some of the issues above concerning descriptiveness, deception and so on. It is also less likely that the word is already in use. You can commission a branding agency to make up a word that captures the essence of your brand. For example, Google is a deliberate misspelling of googol. However, there is no problem in using an everyday word that does not directly relate to your products eg Orange for telecommunication services or Amazon for books.
Is the brand name (or something similar) already being used?
Once you have selected a possible brand name, you should check whether its already in use. Launching a brand that infringes someone else rights could be a costly mistake as you might have to pay compensation or damages to the other brandowner and come up with a new brand (as Microsoft recently discovered when it was ruled that their brand SKYDRIVE infringed BSkyB's trade mark rights).
Use a trade mark attorney to carry out a trade mark clearance search in your country of business but also any prospective export countries. Costs are usually in the hundreds rather than thousands of pounds. The search will reveal exact matches and near matches. A trade mark attorney can offer advice on whether existing trade mark registrations are likely to act as a bar to use or registration of your brand name. For example, there may not be a problem if a similar trade mark is being used in a completely different industry.
In addition a trade mark attorney can search the internet, Companies House and domain name registrations to see if your proposed brand name is being used elsewhere.
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