Trade-Marks

A trade-mark is a symbol which is used to convey a message to the public that the products or services provided under the trade-mark are to be distinguished from similar products or services provided by other traders. A trade-mark can be a word, name, slogan, symbol, design, package shape, the shape of the product itself, or a combination thereof.  The key factor is that, whatever the trade-mark, it must be capable of carrying out its function of distinguishing the wares and services of one trader from those of other traders. 

A trade-mark is often the single most valuable asset of a business.  It is a "concentrated version", of the public image of the trader who is conducting the business.  A trade-mark is usually chosen to be catchy and memorable, so as to help consumers to make the link between the product or service and the trader who is providing it.  Thus, in your business, who you are and what you do is crystallized in your trade-mark.  When you are selling a product or service which differs only slightly in type or quality from the products or services of other traders, then the trade-mark may be the major distinguishing factor that consumers will look to when making a choice between the competing products or services.  You need only look to the major brand name beers, soft drinks, or cigarettes for examples of situations where trade-marks strongly influence consumer choice! 

Even in situations where you start out with a product which is completely unique, a trade-mark may be a very useful marketing tool.  If you have no patent or other intellectual property protection to help ensure exclusivity of supply in the marketplace, a trade-mark may be of significant value in the marketing of your new product, as a catchy trade-mark will stick in the mind of the purchasing public, and they will tend to "ask for it by name".  Moreover, vendors are required by law to differentiate between a substituted product where the trade-marked product asked for by the customer is not available, and a substitute is offered in its place.  [Hence, the ubiquitous, "Will a Pepsi® do?" when you ask for a Coke® in a restaurant that sells only Pepsi® cola].  Thus, if you are quick out of the gate with a new unpatentable product and are able to rack up considerable sales before the copiers catch on to your success (copiers only copy winners, never losers), you may have captured considerable goodwill (ie. favourable marketing presence) in the relevant marketplace.  This goodwill is typically embodied in your trade-mark.  Even where you are able to obtain a period of exclusivity in the marketplace by patenting your product, a trade-mark can add considerable value to your product.  When your patent expires, anyone can produce the same product (probably cheaper than you, since you have to recoup your research and development costs).  You may have had a marketing head start while the patent was in force, but patents, unlike trade-marks, cannot last forever.  If you had selected a distinctive trade-mark, promoted and enforced it effectively during your patent monopoly, then consumers will recognize your product by your trade-mark long after the patent has expired.  Moreover, if their previous experience with your trade-mark was favourable, they will likely continue choosing your product over the unknown copier's.  Best of all, the exclusive rights offered by your trade-mark will be yours indefinitely, if you manage your trade-mark well.


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