Historical background and difference of trademark and brand
For a long time in the past, goods have been etched with marks and signs to delineate origin and ownership for the purposes of trade. Craftsman applied their names, unique drawings, or simple inscriptions to identify goods they created. Craftsman marked their wares as a stamp of quality – sometimes required to do so by law so shoddy work could easily be traced back to its source – and travelling traders marked goods so if ever lost or stolen, questions of ownership could easily be resolved. Even though these “trade marks” surely helped in distinguishing goods, they weren’t “trademarks” in the modern sense of the word. In essence, these early markings were seedlings of both the brand in the sense of the word as used in business and marketing, and trademarks in the legal sense of the term.
So what’s the difference between a brand and trademark, and why does it matter?
The history of brand.
What do you do when you sell essentials like flour, sugar, salt and pepper, and suddenly buyers can get the exact same product from 4 other suppliers?. That’s what happened when the industrial revolution rolled in. Producing was no longer enough. Now, manufacturers had to find a way to get buyers to choose their product over the others. That might not seem too tough, except for the fact that most products on the market were commodities – essentially the same, with no tangible points of differentiation. The solution was the brand, and a whole new era of marketing and advertising was born.
If manufacturers couldn’t convince buyers to buy their products based on actual points of differentiation, they’d have to create new ones. When you sell flour that’s the same as your competitor’s, forget about trying to sell on the merits of the flour. Sell on something else, like the name, packaging, slogan or a nifty jingle.
For the next couple centuries, the brand would be king, but this new type of marketing and advertising brought with it a whole new challenge. If the competitors’ consumers were buying products because of name, colors and look of the packaging or the slogan, the solution seemed simple: copy! After investing thousands of dollars in advertising a particular brand and linking that brand to certain features, qualities or standards in the minds of consumers, there was little that would stop a competitor from trying to use the same – or a similar – name, packaging, color scheme or slogan. Sure, it might not have been the most ethical way to do business, but that didn’t stop greedy business owners.
The history of trademark
During the 19th century, business owners who worried about their investment of time, effort and dollars into their brand began to have their voices heard. As modern legal systems developed, governments began passing laws to protect intellectual property, allowing federal protection for inventions (patents), works of creativity (copyright) and brand “marks” (trademarks). The first modern trademark laws would see the light of day in Europe and the US in the latter 1870’s. From the outset, registration of a trademark was considered evidence of ownership. At last, a company whose greatest asset was its brand could essentially purchase “brand insurance”, ensuring that if someone else tried to copy their brand, the law would be on their side.
The difference between Brands and Trademarks
A successful brand is like a shortcut in the mind of the consumer. It communicates to buyers instant messages about a product’s uniqueness, origin and quality without requiring a long, involved thought process. Instead of having to think through a purchase, brands activate a “buy button” in the minds of shoppers. And that’s worth a lot of money to business owners.
A trademark is the legal protection of a brand that grants you the exclusive right to its use in the marketplace and makes it easier to take legal action against infringers if they attempt to use your brand (mark). Wikipedia defines a trademark as a “a recognizable sign, design, or expression which identifies products or services of a particular source from those of others.” While this definition has some truth, it doesn’t really differentiate a trademark from a brand. A brand is made up of signs, designs or expressions which, in part, “identifies products or services of a particular source from those of others,” and perhaps more importantly, forms the identity of the product or company and becomes your reputation in the market place.
The Black law dictionary definition of trademark is “something (such as a word) that identifies a particular company’s product and cannot be used by another company without permission.” It’s the entire concept of permission that trademarks bring to light. If you create a brand and use it in the marketplace, you do have some legal rights to its ownership (common law rights), but these are hard to defend and prove. In reality, there is little to stop a competitor from using the same or a similar brand for his own products or services. Register the elements of your brand – your business name, product name, logo, design, or slogan – and only you have the exclusive right (“legal permission”) to use them, unless you grant that permission to someone else (through licensing for example).