The Hindu Business Line : Don't give your trademark a split personality

WHAT'S the problem with Aspirin, Cornflakes, Dry Ice, Brassiere, and Zipper? "These are just a few of the names once recognised as brands that have lost their exclusivity due to owner misuse and ignorance of trademark law protection," says Talcott J. Franklin in Protecting the Brand, from Viva Book P Ltd (viva@vivagroupindia.net).

A brand can be a company's most valuable asset, reminds the intro. But the problem is that the asset is intangible, and therefore, many don't understand how to protect it. You want your product to be used by everybody, but if all are using your `brand,' there is no value. "Mark owners have seen their trademarks sentenced to death for the simple crime of designating a mark with an <108,SYM,210> instead of a TM, failing to use the mark as an adjective, or letting someone else use the mark without monitoring their use." Who would like to be one of them?

The author narrates how DuPont owned `Cellophane' brand for transparent sheets of regenerated cellulose. "Unfortunately no one called these transparent sheets anything but cellophane, even when attempting to order the product from DuPont's competitors." Result? When the court had to decide upon the dispute of who owned the name `Cellophane,' it said that it would be unfair to allow Dupont to have a monopoly over a word commonly used to describe the product. And the word entered the dictionary as one more word. "This is why the Coca-Cola Company gets upset when a waiter brings a Pepsi cola to someone who asks for a Coke," reasons Franklin.

In 2002, Interbrand Corporation valued McDonald's brand at $26.38 billion. The author cites the burger maker's annual report to give the value of McDonald's tangible assets as $21.86 billion, and reasons: "McDonald would be in better fiscal shape if a financial disaster wiped out all its tangible assets than if a lawsuit wiped out its trademark." Interesting analysis.

Part II of the book lays down `brand use rules.' Here's a sampler. First, `use it or lose it,' because "a trademark can be cancelled for non-use," and a relevant case is that of Stern Electronics vs Kaufman, if you want to rummage the law tomes. Second rule, "Don't contribute the mark to the English language," meaning, keep it out of dictionary unless the word is identified as a trademark in the publication. Third, "Don't give the mark a split personality," which is what would happen if you were to give it a `definition'. That's what hit Yo-Yo the `return top' about fifty years ago.

There're also rules for using brand in text, as part of ad or presentation. "Don't let the mark stand alone" because it's an adjective. "Once the public begins to refer to a product by the trademark alone, the mark has become generic and cannot receive trademark protection," cautions Franklin of the risk in letting mark float as a free noun or verb. Your mark should "stand out in the crowd". Reader must know that he is seeing a mark, not an ordinary word.

Your mark may fall into "an identity crisis" when it is the same as the company name. How about using the mark as a domain name or URL? "Do not make directional information appear like a mark, and do not make the mark appear like directional information," advises the author. Thus, to say `View our full line of products at ACME.COM <108,SYM,210> is wrong. Instead, use the complete URL name such as, www.acme.com, so people know that as the link and not a trademark. Part III lists many `tricks of the trade' to tell you about `the practical side of brand protection'.

As the `summary' captures, the book is about "a history of colossal branding failures" to alert you on what not to do. Great read.

BookMark@thehindu.co.in

Article E-Mail :: Comment :: Syndication :: Printer Friendly Page

Stories in this Section
The distribution barrier

`India can be among top three Asian markets'

The Skoda score

The Indian challenge

Shaping the future with insight

Up the price spiral?

Don't give your trademark a split personality