Trade Marks – Logos are not the only Fruit

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Photo Credit: Kristian Ekelnd

Trade marks can protect so much more than just brand logos

I think it’s a given that entrepreneurs understand that protecting their company logo should be high on their list of priorities; and in my experience they also know that the way to do this is by applying for a trade mark. Furthermore the UK Intellectual Property Office provides some fantastic materials to support anyone applying for a trade mark; more on the UK IPO materials

However the focus of my article today is not the almost pavlovian response entrepreneurs have to the word trade mark (by way of example; ask an early stage entrepreneur how they have protected their brand and they will invariably say they have trade marked their logo) but instead I will focus on how trade marks could be used to protect so much more than just a logo; protecting a logo is just the tip of the iceberg.  More on the Pavlovian theory

What is a Trade Mark?

The main function of a trade mark is to indicate the commercial source of a product and service concerned. A trade mark functions as a quality standard, so that consumers can be confident when they buy a product or service bearing a particular mark that they are getting the product or service they expect. A trade mark can also be used in a sales promotion and as an instrument of commercial strategy.

Furthermore, only signs that can be represented in the various trade mark registries in a manner which enables the competent authorities and the public to determine the clear and precise subject matter of the protection afforded to their proprietors, can be registered as trade marks. Or to put it another way, signs can be represented in any appropriate form using generally available technology, as long as the representation is clear, precise, self- contained, easily accessible, intelligible, durable and objective. Search the trade mark registries from here

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Photo Credit: Austin Distel

Traditional Trade Marks

Trade marks come in many different types. For traditional trade marks (words, figurative elements, shapes and colours) the representation requirement above is easy to fulfil. However, for “unconventional” marks (sounds, movements, smells and tastes, etc.) this hurdle is harder to overcome, since it becomes more difficult to comply with the Sieckmann criteria, according to which the representation should be: clear, precise, self-contained, easily accessible, intelligible, durable and objective. More on the Sieckmann criteria

Word Marks

A word mark is a typewritten mark with elements including letters, words, numerals, keyboard signs and/or punctuation marks.

Figurative Marks

Figurative marks are marks consisting of a logo or figurative elements (exclusively or in combination with verbal elements) and verbal elements in a non-standard font or in colour. Verbal elements in a non-EU alphabet, e.g. Chinese characters, are treated as figurative marks.

Three-Dimensional Marks

Three-dimensional marks are marks consisting of a three dimensional shape. This includes containers, packaging and the product itself.

Colour Marks

Colours are often used in other types of trade marks, e.g. figurative marks. In the case of colour per se marks, protection is sought for one or more colours, regardless of any specific shape or configuration. Protection is not sought for the colour as part of a figurative mark, e.g. a logo. It is the shade of colour that is protected and, in the case of more than one colour, the ratio in which the combination of colours are arranged. Both single colours and combinations of colours can be registered as trade marks. If the representation contains other matter, such as words or images, it is not a colour per se mark but a figurative mark.

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Photo Credit: Fernanda Rodriguez

Non-Traditional Trade Marks

So what else could an entrepreneur protect in terms of their brand? How about sound marks, movement or animated marks as well as smell or olfactory marks?

Sound Marks

These can consist of any sound, music or jingle. They can be represented using the standard methods for reproducing sound graphically, for example musical notation. An electronic sound file is also an option.

Movement or Animated Marks

These consist of different sequences and contain animation. These marks can be represented graphically by showing the different sequences of the movement, accompanied by a detailed description explaining the animation.

Smell or Olfactory Marks

Whilst protectable in theory it is hard to so in practice as there is no easy way of representing a smell in such a way that the representation is clear, precise, self-contained, easily accessible, intelligible, durable and objective. Chemical formulae of the olfactory molecule are not acceptable.

Jeff Bezos on the importance of Branding (and what he didn’t say)

As the founder, CEO and President of Amazon said:

When you brand yourself properly, the competition becomes irrelevant.

Perhaps we can add:

When you brand and protect it properly, the competition becomes irrelevant.

Where to go from here

So when it comes to protecting your brand, yes think immediately about your logo. However the best question to ask yourself at this point is:

What aspect of my brand (other than my logo ) would I fear being copied by a competitor?

This I think will help steer your attention to what elements of your brand are really important to you and therefore worth protecting with a trade mark now or in the future; trade mark applications cost and therefore it would be unrealistic for early stage entrepreneurs to aim to register every aspect of their branding at once.  Trade mark application costs here

Perhaps you could aim to protect one element of your brand for every successive accounting period you are in business? This would give you an opportunity to see whether your initial list of brand elements bears any resemblance to what your customers see as ‘your brand’ in reality.

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Photo Credit: Hamish Weir

Credit: EPO

Changes have been made to the original material from the EPO, the resulting modified version has not been authorised by the EPO, and the EPO shall not be responsible for the correctness of any such modifications.

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