How does a Trade Mark Function?

Before starting out in search of a trademark, be sure that you know how a trademark functions.  In very simple terms:


A trademark is a symbol used by a manufacturer or merchant to identify his goods and distinguish them from those of his competitors.


If the symbol identifies and distinguishes, it is said to be distinctive, and hence eligible for trademark status.  Symbols which are not distinctive, such as generic words (cassette, video recorder, chair), are not eligible.  Anyone can use these words.


Actually, a trademark does more than merely distinguish your products from those of your competitors. As far back as 1942, the position was succinctly stated as follows:


If it is true that we live by symbols, it is no less true that we purchase goods by them.  A trademark is a merchandising shortcut which induces a purchaser to select what he wants, or what he has been led to believe he wants.  The owner of a mark exploits this human propensity by making every effort to impregnate the atmosphere of the market with the drawing power of a congenial symbol.  Whatever the means employed, the aim is the same – to convey through the mark, in the minds of potential customers, the desirability of the commodity upon which it appears.  Once this is attained, the trademark owner has something of value.


A trademark should work for you in three ways:


1)    It should distinguish your goods from those of your competitors.

2)    It should serve as a guarantee of consistent quality.

3)    It should help to advertise and sell products.


Let us see what we mean by these three functions.


1) It Distinguishes Your Goods


Your trademark should be unique.  It should indicate that all goods bearing that trademark come from or are sponsored by your company.  The purchaser need not know the name or location of your company, but he is entitled to reply on the fact that your trademark, like an individual’s signature, is exclusively the mark of the one person.


If the trademark you select is confusingly similar to a mark already in use by another company, on the same goods or on goods the public might expect would be made or sponsored by you, you are in trouble.  Since the mark does not distinguish your goods, it cannot be your trademark.  Furthermore, you may well be liable as an infringer.


2) It Guarantees Consistency Of Quality


A trademark also assures the customer that all goods which bear it will always be of the same high quality the customer has come to expect.  It guarantees that you will get the same satisfaction from your next purchase of the product as you did from the last.


3) It Promotes The Sale Of Your Product


The trademark you select should be a good salesman, a congenial symbol with sufficient drawing power to persuade the customer your product is desirable.  If you choose to coined word like Exxon, its selling power must come from the advertising put behind it and the reputation for quality your products acquire in time.  It may have a striking appearance or sound, but initially it is merely an eye-catcher without a message, a shout without a sentence.  Many prefer this type of mark because it is easier to enforce and protect against imitators.  Others believe a trademark should function as a compressed advertisement,  should make a statement.  They prefer a mark which conveys a favourable connotation or suggestion at the outset:  Fortune for a business magazine, Enhance for hair moisturizers, Maiden form for women’s lingerie, Concert Hall for phonographs.  Such marks may suggest some characteristic of the product or benefit to be derived from using it.


Other marks carry a cachet of status, fashion, and prestige, but frequently attain their maximum drawing power only after they have been in use for some time or if they are based on an established reputation in the field.  They often are associated with prominent designers, exclusive stores or product lines and, not infrequently, costliness:  Gucci, Cartier, Tiffany, Dunhill, Vidal Sassoon, Oscar de la Renta, Diane von Furstenburg, Christian Dior.  These marks probably have greater marketing potential for certain types of products than do coined, meaningless marks.  To find a trademark with sales appeal calls for the exercise of imagination and ingenuity.



Should you use one of your existing marks?


There are, literally, millions of trademarks already registered and in use in South Africa.  Selecting a new one is, all too often, a maddening experience.  But if you are already using one or more trademarks, why not extend one of them to your new product?  You might choose between your “house mark” and a secondary mark you have been using on a specific product, sometimes called a “special product mark”.



House Marks


If you have a basic or institutional mark that is common to all your products, like DuPont or Sony, you might well decide to bring your new product within the family and simply identify it with your house mark.  Your selling job will be easier than pioneering with a new, unfamiliar trademark, and customers satisfied with your other products will be prejudiced in your favour.  Also, promotion of your new product will inure to the benefit of all items in your line, some of which may be justify the expense of separate advertising.  And the risks of being challenged as an infringer may be reduced to practically zero.



Special Product Marks


If you do not wish to use your house mark, you may find it advantageous to take another trademark you have previously been using on a specific product, and extend its use to your new product.  Vaseline began as a trademark for petroleum jelly, and was later extended to hair tonic, skin lotion and bath beads.  Band-Aid, initially a one-product mark, is now used on a variety of first-aid items.



Derivative marks


You might also consider coining derivative from one of your existing trademarks, and creating a family of trademarks with a common denominator.  Eastman Kodak did this to good advantage when it adopted Kodachrome, Kodacolor and Kodel.