All Brands are Trademarks, But Not All Trademarks are Brands

What comes first the trademarks or the brands? These words are not synonymous, and understanding the difference is important. Vocabulary in general is critically important to understanding new topics and being able to converse intelligently about them.

The Federal Trademark Act defines what constitutes a trademark very broadly. “A ‘trademark‘ includes any word, name, symbol, or device, or any combination thereof – used by a person – to identify and distinguish his or her goods . . . from those manufactured or sold by others and to indicate the source of the goods, even if that source if unknown.”

Traditionally, a trademark is thought of as words and designs, but it can include smells, tastes, colors, shapes, touch, and sounds. What determines if any of this matter can function as a trademark is whether consumers rely on it when making purchasing decisions. Consumers come to rely on any matter when making purchasing decisions by having experiences with the matter. Those experiences can be good or bad, but those experiences are embodied in the trademark and the trademark starts to represent and stand for those collective experiences. The collective experiences embodied in a trademark is referred to as the goodwill associated with the trademark.

When someone mentions the word brand they are referring to “the sum total fo the thoughts, opinions, associations, and experiences people have with your company.” Brand is more synonymous with goodwill than it is the word trademark. And because a brand requires consumer experiences, all brands are trademarks but not all trademarks are brands.

A company can do a lot to influence the experiences consumers have with the trademark. For example, you can have attractive packaging and marketing collateral, and have excellent customer service. All these things positively reflect on the company and create a quality expectation by consumers every time they encounter the trademark. When this expectation is created, you then have a brand.

The path from trademark to brand depends in part from the selection of your starting point. Select matter that consumers immediately recognize as a trademark, and your path will be shorter than if you select matter that takes time for consumers to recognize is a trademark in the first place.

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