This article is written by Shraddha Jain, a law student at the Institute of Law, Nirma University, Ahmedabad. This article seeks to differentiate between the concept of brand and trademark.
It has been published by Rachit Garg.
Table of Contents
Introduction
In today’s world, it is more convenient and trustworthy to purchase a branded product from the market. This brand name assures us of the product’s authenticity and high quality. However, in today’s environment, everyone aspires to be famous in a short period of time. Therefore, duplication or copying of brand names is very common. To avoid this, a new concept called a trademark has been developed. To understand them, certain fundamental distinctions between brand and trademark must be looked into.
A brand is a name assigned by the owner or producer of the good, whereas a trademark is a term, phrase, or symbol that is legally protected by statute. The concept of ‘brand’ is used to identify items and companies in the market, but it does not guarantee legal protection against illegal use. Therefore, the concept of a trademark has emerged to prevent the copying of products and other illegal uses.
Differences between brand and trademark
Meaning
Brand
A brand is a name given to a product by its owner or manufacturer. It is a name that refers to a company’s products and services and inspires favourable images and feelings in the customer. A brand name contains some elements like personality, culture, identification, picture, attitude, reputation, and spirit of the company. It is usually used to distinguish the company’s products from other products.
Brand names are often assigned to items developed by a corporation or group. This name has significant relevance that is difficult to comprehend. The style and design of the brand name are also based on this factor. Therefore, while selecting a brand name, one must be very careful to analyse the company’s core product.
This task of creating a brand name should be completed before you introduce your goods or establish your brand in the market. Furthermore, the inter-brand may be used under the brand names to convey the great advantages and quality of the goods and services.
Although a brand name does not guarantee legal protection against unauthorised usage, it can create a perception that only the brand can supply. With the passage of time, the popularity of the brand name may become a part of the language and the brand name may become a common word after several years of use.
Various definitions of ‘brand name’
- The Cambridge English Dictionary defines ‘brand name’ as-
“It is the name assigned to a specific product by the firm that manufactures it.”
- Definition of brand name as per dictionary.com is-
“It is a term, name, sign, etc., specifically one officially registered as a trademark, which is used by a producer or trader to distinguish its items from others of the same sort and is prominently displayed on its products, in marketing, etc.”
- Definition of brand name in Chapter 9 of the Central Excise Tariff Act, 1985, is as follows-
“A brand name or trade name, whether registered or unregistered, is a name or a mark, such as a symbol, logo, tag, signature, or created word or writing, which is used with regard to any specific commodities for the purpose of denoting, or indicating, a correlation in the course of a business between such specified goods as well as some individual using such name or sign with or without any indication of that particular personality.“
Trademark
A trademark is any term, name, sign, image, or any mixture of these, used in business to identify and differentiate one company’s goods from those produced by another, as well as to signify the origin of the products. The symbol ® is used to denote a registered trademark. The trademark superscript, TM, is commonly used for an unregistered trademark to secure a word, expression, or symbol from other users. The usage of the TM sign, however, doesn’t guarantee that it is covered under trademark law.
Various definitions of ‘trademark’
- As per Section 2(1)(i)(viii)(zb) of the Trade Marks Act, 1999,
“A ‘trademark’ refers to a sign suitable for being represented graphically and suitable for separating one company’s goods or services from those offered by others, and may include the design of the items, their packing, and colour scheme.”
- According to Section 1127 of Title 15 in the United State Code,
the phrases ‘trade name’ and ‘commercial name’ refer to any name used by an individual to identify his or her company or occupation.
The term ‘trademark’ refers to any word, term, sign, design, or any combination thereof, that is-
- used by an individual;
- that a person intends to use in business and applies to the principal register formed by this chapter to differentiate his or her products, especially unique products, from those created or marketed by others and to identify the origin of the products, even if the origin is uncertain.
Origin of the concept
Brand
The term ‘brand’ or ‘brandr’ derives from early Norwegian, which means “to burn, to set a light“. It goes back to the days when shepherds marked their sheep to distinguish them from that of other shepherds. This was done by pressing a hot iron against the sheep to burn a distinctive mark into them. Subsequently, it was used in the English language as a loan translation. Initially, the phrase was used to refer to the source, originator, or owner of a thing or item.
Trademark
In later times, the figures were used as personal objects and frequently underwent changes in the hands of various family members. Then they were used as trademarks or as symbols of artisans and artists.
Purpose
Brand
A brand name serves two main purposes:
- Identification: To distinguish one product or service from another of the same or similar type.
- Verification: Confirming that a product or service is the real or intended item (as opposed to a generic or fake product).
The brand name reveals the brand’s purpose. It assists advertisers in developing a strong brand identity or picture for the item in order to place the item in the minds of the target audience. Before releasing or placing a commodity in a market or industry, it is critical to establish a brand name. Under the brand name, we can also utilise inter-brand to represent the important features or advantages of the product or service.
Trademark
The purpose of a trademark is to prevent product copying. The prime objective of a trademark is to avoid unfair competition among businesses that use customer ignorance to generate more revenue. For example, if a local cafe uses a golden, arching ‘M’ as its symbol, customers may mistake it for McDonald’s. Creating this sort of misunderstanding is illegal under trademark law.
Trademark law serves two functions:
- A trademark helps buyers distinguish different items.
- A trademark safeguards the owner’s capital as well as his or her reputation.
Types
Brand
There are various kinds of brand names, such as:
- Initialism (initials of anything),
- Descriptive (name with the advantages of the product),
- Foreign words (words from some other language),
- Founder’s name (names of real personalities),
- Combination (combining multiple words to make one).
Trademark
There are various kinds of trademarks, such as:
- Service marks (source of products),
- Fanciful, arbitrary, and suggestive trademarks (the strongest and most protected trademarks),
- Simply descriptive,
- General and descriptive (weakest trademarks),
- Trade name (identifying the company as a whole).
Scope
Brand
Not all brands are trademarks. A brand is a visual object that is grounded in reality yet reflects customer views and, in some cases, peculiarities. Eventually, a brand is something that customers associate with. As a result, the scope of branding goes beyond boundaries.
Trademark
All trademarks are brands. The registration of a trademark provides protection for a company’s current business. The scope of protection is fairly broad since it applies to both identical and similar trademarks.
We can see this relationship from a diagram given below:
Association
Brand
The brand name is closely associated with the work environment, identity, purpose, and reputation. Simply said, the brand name serves to address the question, “what is the firm all about?“
Trademark
A trademark is associated with packaging, a logo, and a colour combination. It will safeguard the company’s brand by preventing competitors from using the same mark, which may mislead the customer.
Legal difference
Brand
When we discuss the brand name, it is clear that it isn’t legal in any manner. The corporation chooses a name for its goods or services either randomly or after doing considerable analysis. Because there is no legal obligation associated with the brand name, you are free to pick anything you believe is best for your brand.
Trademark
Whenever you talk about a trademark, you may be assured that it legally represents your goods and services. There is a legal obligation associated with the trademark.
Limitations
Brand
The brand name is only secured in the state where it is registered. It implies that nobody else is allowed to adopt the brand name within the same state. However, you can’t stop other states from using it in a different sort of business or industry.
Trademark
Trademarks are intellectual property that secures the brand’s identity by lawfully establishing that the mark is not being used elsewhere. It also provides government security.
Time duration
Brand
There is no time limit for using a brand name. Your brand should be able to survive for as long as you want it to. Unless something unexpected happens, such as the selling of your business, a transfer in leadership, or a significant alteration in your market or product portfolio, your brand is the most essential and lasting expression of your firm and its ideas.
Trademark
Section 25 of the Trade Marks Act, 1999 provides that a trademark can be used and secured for ten years. It has to be renewed every 10 years. The renewal of a trademark enables the company to continue protecting copyrighted property. Section 25(3) of The Trade Marks Act, 1999 states that the Registrar shall give notice in the specified format to the registered owner at the specified time or even before the expiration of the last registration of a trademark.
Use
Brand
Other manufacturers and retailers can use a brand name. If any other manufacturer uses your brand name, then there is no punishment for it because it is not protected legally, and hence, anyone can use it.
Trademark
Trademarks can only be used by the owner or producer who has a legally registered trademark. But, as long as your services and goods are different from any other registered trademarks, you may use or even register them.
Legal identity
Brand
The brand name is not a legally recognised name. It’s just a brand name chosen by the corporation for a particular product. Consistent marketing and advertising result in constant brand identification and, as a result, continuous revenue.
Trademark
A trademark legally reflects a company’s products and services. The word ‘trademark’ has been identified by various legal bodies and statutes like the United States Patent and Trademark Office (USPTO), Trade Marks Act, 1999, etc.
Legal protection
Brand
A brand is not protected by any law. Anyone can use your brand name. If you want to protect your brand name, then you have to register it as a trademark.
Trademark
Trademarks are protected by the Trade Marks Act, 1999. The Act provides legal protection for trademark rights in India. It addresses trademark protection, registration, and the prohibition of illegal usage. It also addresses the privileges of the trademark owner, fines for violation, compensation for loss, and procedures for trademark transference.
Examples
Brand
Popular brand names should be distinct and attractive in order to raise customer awareness and encourage loyalty to the brand, such as Google, Nike, Samsung, Adobe, Oracle, etc.
A brand name might often be merely the name of its originator; for example, Martha Stewart, Ford, Kellogg’s, Ralph Lauren, and so on.
Normally, brand names are capitalised, but in the past few years, they have also been bi-capitalized, such as ‘eBay’ or ‘iPod’.
Trademark
The most frequent sort of trademark is a word or other collection of characters, such as GOOGLE, NETFLIX, IBM, NBC, etc.
Logos are most likely the second most frequent type of trademark. A logo is a design that develops into a mark when it is used in close relation to the products or services being sold. The logo mark does not need to be elaborate; it only needs to differentiate goods and services offered under the trademark from those other goods and services. NBC’s peacock design is one of the examples of logo marks.
Figure or scene images or drawings are frequently used as trademarks or service marks, such as Puma’s puma, Corning’s Pink Panther, Duke, the Java Mascot, Android, etc.
Sometimes, slogans are also used as trademarks. For example, the slogan for McDonald’s is “I’m lovin’it“.
Summarising the difference between a brand and trademark
| Point of difference | Brand | Trademark |
Definition | A brand is a name given to a product by its owner or manufacturer. | A trademark is a term, phrase, or symbol that is legally protected by statute. |
| Protection | A brand name is not protected legally. There is no legal obligation associated with the brand name. | There is legal protection given to the trademark. In India, trademarks are governed by the Trade Marks Act, 1999. |
| Nature | All brands are not trademarks. | All trademarks are brands. |
| Registration | Registration of a brand is not necessary. | Registration of a trademark is necessary. |
| Objective | The objective of the brand is to aid in the identification of a product and to give it uniqueness and differentiation. | The objective of the trademark is to stop duplication and copying of the product. |
Example | The examples of brands include:Nike, McDonald, Apple. | The examples of trademarks include:Nike Swoosh, McDonald’s double arches,Apple with a bite taken out. |
Grounds for consideration and non-consideration of the usage of brand vs. trademark
Reasons to consider using a brand vs. trademark
A trademark or service mark are essential safeguards against brand infringement. Trademarks can be used to prevent people from not only using your brand, but also from establishing one that is so close that it confuses customers and tricks them into believing they are purchasing a product linked with you. This is known as brand confusion.
Whereas trademark protection is automatic, if you need to sue somebody to safeguard your trademark, you will have the responsibility of showing that the mark originally belongs to you. If you have filed a trademark with the USPTO, use the ® symbol after the trademarked object.
Reasons to consider not using a brand vs. trademark
There are two types of trademarks: basic and registered. When you start using something to distinctively portray your brand, you may trademark it by adding the TM mark after it. This gives you certain legal protection if another individual tries to steal, misappropriate, or misunderstand your brand.
On a certain level, trademark protection is automatic the instant something gets connected with your brand, whether it is the word, a symbol, your designs, or any other thing. You do not need to register your trademark to acquire protection. For various people, this is sufficient cause to consider not using a trademark to safeguard their brand.
Conclusion
In normal conversation, the terms `brand name’ and ‘trademark’ are used interchangeably. The distinction between a brand name and a trademark lies in their function. The distinction between a brand and a trademark is as narrow as a thread, yet if not understood correctly, it can have serious consequences. The trademark has been registered, and it mostly includes the brand name, image, sign, design, words, etc. given by the manufacturer. In business, a brand is also a very important word for a producer or corporation to achieve an achievement.
Frequently Asked Questions (FAQs)
What is the significance of a brand?
Brands are essential because they add value to both people and businesses. They also give a company a competitive advantage in the market over its competitors. Successful branding increases a firm’s client base, which leads to confidence and credibility, which produces brand loyalty—all of which gives a business a competitive advantage in the market and a larger bottom line.
How do I choose a trademark?
There are two critical processes for choosing a trademark. First, you must pick a mark that attracts the consumer and uniquely distinguishes your product. Inherently unique brands benefit from automatic trademark protection as well. Second, a company can perform a trademark search to ensure that it is the first to use the mark.
What are the things that cannot be trademarked?
Section 9 of the Trade Marks Act, 1999 specifies the absolute grounds for the rejection of trademark registration. Trademarks that are not unique, that exclusively comprise marks that have become usual in the present language, that mislead or create confusion to the public, that harm any religious sentiments of a group or section, etc. are absolute grounds for denying registration.
Also, there are several trademarks that the USPTO does not recognise. They include any mark that contradicts a law, contains vulgar or controversial materials, or is similar to an existing registered trademark. scientific term, ‘compound’ or ‘substance’. Regional names, surnames, personal names, and frequent acronyms are also not up for trademarking.
References
- https://askanydifference.com/difference-between-brand-and-trademark/
- https://smallbusiness.chron.com/legal-use-product-names-advertising-18012.html
- https://www.baxterip.com.au/brand-name-vs-trade-mark
- International Journal of Economics and Management Systems http://www.iaras.org/iaras/journals/ijems
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