I read in last week’s Northern Colorado Business Report about an attorney working in Northern Colorado who uses those little magnetic refrigerator magnet words to “help her clients pick trademarks for their businesses and products.”
My head almost exploded.
If there were such a thing (there isn’t) as “branding malpractice” this should qualify. You should use your legal counsel to help evaluate and select from the possible names YOU have already decided reflect who you are. You shouldn’t be sitting at your lawyer’s desk shuffling letters.
Your brand is arguably the most important asset of your company, product, or service. If your lawyer is asking you to brand your endeavor based on little magnetic tiles, you’re missing at least half the picture.
Granted, making up a new word will help keep you clear of trademark issues in most cases (assuming you actually DO create a NEW word…), but your brand should also be a reflection of what you do, who you are, and what you’re selling.
Unless you have a HUGE marketing budget (think pharmaceutical company), you should create a brand that falls into the “suggestive” trademark classification. That means using an exsiting word or phrase that “suggests” the qualities of the product or service in the minds of the consumer. Think “Crocs”, which suggests “getting a grip” with non-slip shoes. This could also be considered an “arbitrary” mark (even stronger) because it uses a word not normally associated with shoes. In my opinion, combining “suggestive” and “arbitrary” leads to the best combination of marketing efficiency and legal effectiveness.
Why not come right out of the shoot with a completely made-up word?
Because, it takes a LOT of money to build brand association with an “arbitrary” (existing word used in new context) brand, or a “fanciful” (made-up word) brand. You litterally have to build, via your marketing $, the connection in the mind of the consumer between the brand you’re using, and the emotions, qualities, and other mental triggers associated with your product or services. Think Nexium, Protonix, Celebrex, etc. Those word literally mean nothing until you hear and see them on TV, on the radio, and in print a bunch of times. If you have the money to do that – by all means, go for it. Most people and companies simply cannot hope to establish brand awareness of a fanciful mark.
This reminds me of some lines I use with my marketing clients:
1. Don’t let a programmer DESIGN your Web site.
2. Don’t let your printer DESIGN your brochure.
And now:
3. Don’t let your lawyer guide your brand selection (unless that lawyer happens to have a background in brand development, not just trademark registration – like me for instance).
Brand selection and development is a process that combines your organizational culture, your marketing capacity, and the trademark law in a delicate balance. Don’t let any single element of that mix overshadow the others.