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Trademark distinctiveness

03/02/2023 - 03:03

It goes without saying that you must be aware of how spectacular the end product can be when you pay a little sum of money to have a logo or brand created for your business. Legally, the “distinguishing power of a mark” can be defined as the “capacity to make an impression on the customer’s memory.”

What is the distinctiveness of a trademark?

This is a very broad concept and also very abstract, so the article will focus mainly on the concept. Starting from the concept of “Trademark”,

According to the law, a trademark is a commercial sign that distinguishes goods from other manufacturers. Thereby, a distinctive sign must be a sign that distinguishes goods from different manufacturers.

Accordingly, the distinctiveness of a mark can be understood as the distinctiveness of a mark that helps users distinguish products and services between different manufacturers.

How distinctive is the trademark?

The distinctiveness of a mark can be divided into the following five levels, informally but widely known, with increasing strength later on:

  • Generic (Water for drinking water products): Trademarks of the weakest type, often used to talk about things in general. 
  • Decriptive (Apple’s Smart Keyboard Folio): A trademark that describes the product being sold. Legally, trademarks cannot be descriptive of the product being sold, unless distinction has been achieved through prior use.
  • Suggestive (Blu-ray): Bringing in the feature of suggesting customers about the product. Blu-ray refers to the blue laser used to read the disc, allowing information to be stored at a greater density than is possible with the longer wavelength red laser used for DVD discs.
  • Arbitrary (Apple): A meaningful word, and not intended to deceive consumers about the products the business is selling. For example, Apple is in the electronics business, and Mango is in the clothing business.
  • Coined/Fanciful (Google, Coca-Cola): A mark that is highly distinctive in itself

Why care about the distinctiveness of the trademark?

As a trader in the market, when selling products, ones always hope that customers will always remember, in one way or another. When thinking of televisions and refrigerators, everyone thinks of Toshiba refrigerators, Sony TVs. A name, a good brand, easy to distinguish is an advantage that everyone aspires to, but only a few companies achieve in each business segment. However, when that peak is reached, just mentioning that name, many images of the product have rushed to consumers. That’s the pinnacle of salesmanship, selling without a product.

However, new businesses cannot compete with those that have already established a reputation in the market. At that time, an effective strategy is to make a brand that, even though it comes with a quality product that is not comparable to the big guys, but has a high distinguishing ability (at the level of Fanciful), can still attract consumers. Especially, as the world gradually transitions to online shopping, the role of a brand’s prominence among thousands of products on the market is becoming more and more prominent. 

A regular Shopee site. Where does your product stand in here?

How to increase the distinctiveness of the brand?

There are 3 main ways to increase the brand distinctiveness of any product

  • Method 1 : Market research, conduct a trademark search to come up with a brand that is unique, easy to remember, easy to read, and still reveals the nature of the product.

Take for example the Elegant line of motorcycles from Chinese automaker SYM, whose name referring to a motorcycle with an elegant design, an adjective often used to refer to women – who are also the target customers of this product.

This approach is often applied by brands that have the resources to invest before they have a product to sell.

  • Method 2 : Maybe the trademark is not too unique, but the image accompanying it is unique enough to impress customers, and also register the trademark copyright with the State agency (for example: Burger King, Dunlop).

This approach depends a lot on the logo design service that the business chooses.

  • Method 3 : Build a brand for a long time by offering many quality products to win the trust of consumers.

Over a long period of doing business with a quality product, the brand logo will be known to consumers and become a famous brand, without necessarily having to advertise loudly. This is a long-term strategy, especially suitable for brands that have an extremely long history, such as Coca-Cola with a history of more than 130 years, Ferrari, Lamborghini, etc.

However, this is also suitable for companies that can offer products that are superior to the market, such as Wakamono antibacterial masks with more than 10 million units sold in difficult markets such as Portugal, Italy, Australia, New Zealand, USA during the time of the raging COVID-19 pandemic.

Who determines the ability to distinguish?

There are two main factors in determining the distinctiveness of a trademark: the customer and the government.

The state agency , or more specifically the National Office of Intellectual Property, will appear when businesses decide to register for trademark/trademark ownership. The Office has the right to decide whether a mark is distinguishable based on protected trademarks and logos, which are in the 3-year filing period, and intellectual property laws.

However, the ultimate goal of the business should still be the customer. The customer is the one who realizes the distinctiveness of a brand, and this is also an unpredictable element in the branding strategy. There are countless comedic stories about businesses re-releasing a product under a newer brand name, with the result that customers dismiss it as a fake. This is both the most important and the most ambiguous step in the branding process.