The Legal Side of Branding

Abstract

A trademark is a sign or symbol which distinguishes the goods or services provided by an enterprise. It can consist of a word or words, letters, numbers, symbols, emblems, monograms, signatures, colours or combinations of colours. It can even, in some cases, be a phrase or slogan but whatever it is, it can only properly fulfil its function from both legal and marketing standpoints if it is distinctive. A trademark has three functions:

• to distinguish the goods or services of the enterprise from those of another;

• to indicate the source or origin of the goods or services;

• to represent the goodwill of the trademark owner and to serve as an indication of the quality of his goods or services.

These functions are best expressed by example. The mark Zest is a well-known brand name for soap in the United States. The Zest mark distinguishes one product from the myriad of other soap products on the market. The Zest mark functions as an indication of source. The public recognises that there is a single source for Zest soap — though it may not know what it is. Indeed, under United States trademark practice the actual source of the product does not have to be identified. Finally, the Zest name represents the quality of the product and the goodwill of the manufacturer. A purchaser who is pleased with the first bar of Zest soap he buys will, it is hoped, develop a brand loyalty. He will, when he repurchases soap, look specifically for the Zest brand.