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Legal: What’s in a name

Brands are undoubtedly one of the most important assets of a business. Strong brands secure and generate consumer demand and often permit the brand owner to charge premium prices.  

Today’s consumer is faced with a vast choice of product and ever-increasing advertising.

If you want to be seen and heard in the marketplace, you must develop brands that occupy centre stage in the consumer’s mind and that promise clear benefits. The starting point for creating a strong brand is the careful selection of a brand name.

What’s in a Brand?
A brand has the important function of telling consumers ‘who’ the product is and where it comes from. However, a brand also means much more than that to consumers.
Strong brands also tell consumers “what” the product does, how well it does it and “why” they should care. These brand associations can relate to a product attribute(we all knowToys Я Us® is about toys), or can be more abstract (Disney® is all about “family fun”). For a brand to be strong, these associations must be desirable and relevant to the target market.
All of these issues should be considered when selecting a new brand name.
Choosing your Brand Name
One of the most important branding decisions a business will make is what to name its product. There are four important aspects to choosing a brand name. These are:
  1. memorability;
  2. meaning;
  3. ease of transfer; and
  4. distinctiveness and protectability.
It is more difficult to choose brands that satisfy each of these criteria than most people think. Brand names that readily communicate a product’s uses or benefits in descriptive words can lack distinctiveness and be difficult to protect.
An important requirement for a brand name is that it be easily remembered. Simple, easy-to-pronounce words that have some meaning are better remembered by buyers – for example, RAID® insect spray.
A brand name should be distinctive so that it can be differentiated from other brands and can develop its own unique identity. Too often businesses fall into the trap of using names that are overly descriptive of the product or its attributes. A carefully selected brand name will capture the central theme of a product but still be distinctive. For example, the trade mark DIEHARD®conveys the key benefit of long life batteries but is not a commonly used descriptive term for batteries.
3.Ease of Transfer
A brand name that communicates a key association (attribute or non-attribute based) in one product category may not transfer well to products in other categories that don’t share those same attributes. For example, Toys Я Us® does not permit much flexibility in terms of transfer to other product categories.
It is also important to consider how a brand name will translate in other cultures and languages. For example, the brand name MIST STICK, for a hair curling iron was not successful in Germany because “mist” is slang for manure.
4.Distinctiveness and Protectability
Usually, a brand name with a stand-out identity works best. A sufficiently distinctive name will be top-of-mind with consumers and will always be easily identifiable.
Brands also need to be legally strong. The strongest form of legal protection for a brand name is a trade mark registration. A registered trade mark is an exclusive right and provides a legal means to restrain competitors from selling goods under the same or similar brand names.
When a brand becomes well known, competitors will sometimes attempt to copy or imitate it to gain competitive advantage, causing potentially irreparable damage to your brand’s reputation. A trade mark registration is the best way to stop this.
Before investing in a new brand name you should make sure that it’s not already taken. A search carried out by a trade mark attorney can determine whether the brand name is available and can be used without the risk of legal action from another brand owner. It will also help you determine if it has any negative connotations in another market.  

Andrew Lockhart
has been a trade mark specialist with Shelston IP since 1998 and a partner since 2000. He provides advice to clients in the areas of trade mark protection, trade mark searching, strategic trade mark portfolio management, brand architecture and licensing. He is also an experienced advocate in trade mark oppositions, infringement and other actions. [email protected] (02) 9777 1111