What Is A Trademark?
At their simplest level, trademarks are a way of identifying a specific product or service. They are typically used to distinguish the products or services from one company as distinct from a competitor, or indeed any company working in a similar area, even if they would not necessarily be considered a direct competitor to the trademark holder. While individual countries set their own rules regarding precisely what can be protected as a trademark, the basic idea is that the trademark is some kind of symbol which is instantly recognisable and can be immediately associated with the relevant product or service.
Why use a trademark?
While big companies use trademarks, trademarks are at least as important for SMEs. Even if your product or service is a niche offering, you will presumably be hoping to position it as a “go to” choice for customers rather than having to rely on them finding it by accident or with help from advertising, then you need to do everything you can to make it easy for customers to find your product or service and to limit the possibility that they will become confused and wind up with a competitor. Trademarks work in much the same way as distinctive uniforms for customer-facing staff, they provide visibility, recognisability and ideally a feeling of reassurance that the customer is in good hands. They also stop competitors from taking advantage of your good work by passing off their products as yours.
From a legal perspective there is a significant difference between a trade name and a trademark. A trade name is simply the name by which your business is known and in principle there is nothing to stop more than one company having the same trade name. The registration of a trademark gives you ownership. However some trademarks may not be registrable or indeed actually registered. A registered trademark is a distinctive and legal mark which can be used by its owner alone. In other words, simply registering your company and its legal name with the relevant authorities is nowhere near sufficient to give you the same level of protection as a trademark.
Choosing your trademark
The first key point about a trademark is that is should be distinctive. The second is that it should be simple enough for customers to recognise and remember. This includes customers with any form of disability, including visual impairments such as colour blindness and conditions such as dyslexia, which make the act of reading difficult to impossible. Because a trademark needs to be distinctive, you may wish to look at using words which are either made up or which do not bear any obvious correlation to your business area. While this may mean that you need to do more work on marketing and advertising to make the connection in the minds of your customers, once it is made it is distinctive and relatively easy to protect (think Apple for computers). It is critical to avoid using common words and descriptive phrases, assuming you could be granted trademark protection for them in the first place. These are likely to be uninspiring and particularly subject to the danger of becoming “standard” i.e. non-descriptive words or phrases, which cease to be subject to protection.
Protecting your trademark
There are two basic threats to your trademark. One is its misuse (or deliberate abuse) by other companies, which may be a matter to discuss with an appropriate lawyer. The other is your trademark coming to be regarded as non-distinctive and therefore unable to be registered as a trademark. With this in mind, it’s important to resist the temptation to use your trademark as being equivalent to the item it represents, Xerox, Hoover and Kleenex for example are not synonyms for photocopiers, vacuum cleaners or paper tissues although they are often used as such the companies behind them are very clear about the distinction.