You’ve joined the big leagues. Alongside Coke, Honda and Microsoft rests your brand new trade-mark. Sure, it will take a few years to match those brands’ recognition but you’re working on it, right?
This series of posts won’t automatically make you a global brand like Nike, at least directly. Instead, it’s aimed at the more pedestrian things trade-mark owners need to do but which are seldom mentioned. Along the way we’ll throw in some information that might make you say “Ah, so that’s why _________ does ___________”. None of these are very complicated and most can be done yourself without spending more on lawyers.
In most cases these rules apply whether you have a registered or unregistered mark (the latter, sometimes called a common law mark, exists as soon as you start using it). They also apply to both word marks and design (graphics) marks.
Thing To Know #1: You Need To Use Your Trade-mark. A Lot.
Trade-marks are fundamentally based on use. You can’t register a stockpile of names or logos to use later at your leisure. Nor can you register a mark for a future product (Canadian law permits “proposed” trade-mark applications but the registration cannot be finalized until there is actual use).
When you think about what a trade-mark represents this makes perfect sense. A trade-mark means nothing by itself. The Coca-Cola “wave” and the Nike “swoosh” were originally just graphics. When you combine them with the product over years, though, they become a symbolic representation of the merchandise. That’s what a trade-mark is – a signal, either through words or pictures, of the nature of the product it is associated with.
When someone goes into a restaurant with big golden arches beside it they have a pretty good idea of what they are going to get. The same applies when they buy a car with 4 rings on the grill. Those visual cues provide information to consumers about the product they are encountering.
That symbolism didn’t just appear out of thin air, of course. It arose from vast amounts of marketing and other association between the brand mark and the product itself. In other words, without the use of the trade-mark alongside goods or services there would be no recognition, no linkage.
It’s a two-edged sword though. Billions of dollars are spent to create positive associations but when something bad happens the brand can capture the negative connotation just as effectively. No oil company will ever again name a ship the “Valdez”. We also won’t see a car named the “Edsel” in our lifetimes.
So when we are looking at the validity of a trade-mark the first question is whether the mark has been used in association with the product. If it hasn’t, there is no trade-mark. But you can also lose an existing trade-mark through non-use. If enough time goes by without use and a judge considers the reputational link broken, the mark may be expunged.
That’s the legal consequence of non-use. But there is another reason to use the heck out of your mark.
It goes back to building brand recognition. A trade-mark is a unique form of intellectual property that gets stronger the more it is used and recognized. Global brands like Coke, Ford and Harley Davidson have had decades to become famous. Even Apple is pushing 40 years. But brands like Google show you don’t have to wait that long, as long as you can build the product’s reputation and by extension the awareness of the trade-mark.
The point is that no matter what the legal requirements are there is a business imperative. You should be using your trade-mark every chance you can, even if you can’t afford million dollar ad campaigns. Only when consumers see a trade-mark connected to a product does the power increase. Nurture it and protect it like it is the most valuable asset you own – it could very well be.
You can’t be sloppy when using the mark, however, and that’s the topic we will cover in the next post in this series. In the meantime, if you have comments on this article feel free to post them below.