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How to Choose a Trademark?

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trademark

By: Raddhika Singh

In my journey of 14 years as an Intellectual Property lawyer, I have interacted with over 500+ entities who have the same question. They often seek guidance on finding a suitable name for their brand. I understand their concern as a brand is an extension of their personality since it represents their business and also the values they stand for.

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So, I decided, to pen down my thoughts and throw some light on “choosing your trademark”. Keep it simple, do not complicate. The intention is to select a brand name that has a recall factor and helps customers differentiate your products/services from those of others. I  have listed below some points to ponder on when choosing a brand name.

Also Read: Daler Mehndi SUED a toy company for TRADEMARK infringement! Do you understand INTELLECTUAL PROPERTY RIGHTS?

The brand name should not describe the products/services being offered:

I have often heard clients saying that their marketing team has told them to adopt a brand which should speak to their customers. The customers should be able to identify the products/services being offered by hearing/looking at the brand name. Well! this is one of the biggest myths going around these days.

It is imperative to understand if companies adopt brand names that directly describe the nature, characteristics or purpose of the products or services being offered, they cannot stop competitors from using the  same to describe their products/services. This is counter-productive because the primary function of a trademark is to help consumers distinguish the goods or services offered by one entity from those of other entities. Some examples of descriptive marks are Choco Treat in respect of chocolates and chocolate based confectionery; Sound for stereos, Airlines for airlines, “low absorb” for edible oil products etc. It is also important to note that no entity can claim exclusive rights over words which are commonly used by other traders in that business to describe the products or services they offer. Hence, descriptive brand names are the weakest brand names to have.

Also Read: Harley Davidson has trademarked their exhaust. How SOUNDS & SMELLS are registered as Intellectual Property!

Don’t use your personal name/surname

When people start their business, they are often advised to use their name or surname as their brand. They are of the belief that by using their name/surname as their brand they will leave behind a legacy. What these people forget is that there are other people in India who have a similar name/surname. These people also have the right to use that name as their brand and they cannot be stopped. Furthermore, it is important to note that there is an exception under Trademark Act, 1999 (Act). The Act gives every individual the right to use their name/surname as their trading name/trademark and no one can stop them from using the same. In other words, if I get a registration for my name e.g. Radhika Singh then I will not be able to stop another Radhika Singh from using that as her brand name because she will have the right to do so. 

Use a bit of imagination and innovate

I often advise my clients to use their imagination and be innovative. It could be as simple as identifying the characteristics/values they wish to associate with their products/services. Creating unique brands by combining two/three words which make it distinctive or combination of the names of the partners. It is, therefore, advisable to adopt a brand name that is coined/invented for the simple reason that it differentiates your products from those of others because of the uniqueness of your brand name. Secondly, if any other entity adopts a similar brand name they will commit trademark infringement as they will have no defence to justify the reason behind adopting that brand name. Thirdly, since the brand name is unique the goodwill and reputation associated with it makes is invaluable. 

The strongest trademarks are made of words which are arbitrary and coined. Arbitrary trademarks are those which are commonly used dictionary words but which have no co- relation with the goods or services being offered under the trademark e.g. Apple-Computers, Orange-Mobile, Mango-Clothes. Coined or Invented Trademarks are those marks which have no meaning e.g. Kodak-Camera, Exxon-oil and gas company. If we were to look at the Top 10 brand names as per Forbes, you will notice that they have an extremely high recall value and have no direct correlation or connection with the goods/services they offer e.g. Apple, Google, Microsoft, Facebook, Amazon, Disney and these are either suggestive, arbitrary or coined brands.

Conduct a pre-filing search:

Once an entity has shortlisted a brand name they must conduct a pre-filing search. A pre-filing search is imperative to ascertain the availability of the brand name i.e. to identify if there is another entity with a similar trademark in respect of the same goods/services. If upon conducting a search no identical/similar trademark is revealed then the entity can proceed with filing the trademark application. If a similar mark is revealed then the entity should adopt an alternate brand. By conducting a pre-filing search, an entity can save itself from spending substantial money in promoting a brand and then having to rebrand if another entity with a similar brand sues them.

These are some preliminary points that entities must keep in mind while selecting their brand name.

Also Read: Episode 45: Lucinda Nicholas – Yoga Expert, Supermodel, Author, Lawyer!

Radhika Singh is one of India’s best intellectual property lawyers. She is based in Bangalore, India. Gayatri Sindhu is her associate at Aletheiaa Legal.

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