Trademarks and brands: maximising the value of trademark practitioners and marketers

While trademarks and brands both serve the function of quality indicators, there is a fundamental difference between the two. Put simply, a trademark is what the business says it is – a brand is what the consumer sees it as. What differentiates successful businesses from their competitors is the ability to market a brand effectively by integrating and implementing the perspectives of both trademark practitioners and marketers.

While a trademark is a sign that denotes commercial origin by distinguishing goods or services provided in the course of trade from the goods or services provided by others, a brand is the image or impression that consumers associate with a particular product, service or company. The brand personifies otherwise similar products and services and gives them a character and reputation; although a trademark is only one aspect of a brand, it acts as a peg in the minds of consumers to which visual images, emotional connections and positive (or negative) associations can be attached.

Although trademark practitioners and marketers approach the issue from different perspectives, the synergy between the two can provide the basis for building strong brands. A recent Australian example of trademark practitioners and marketers bringing together their different skills to leverage the successful aspects of a brand to promote a new product was the launch of Kraft Foods, Inc’s new variety of its iconic Vegemite yeast spread, iSnack 2.0.

While the name itself was chosen from over 48,000 competition entries and revealed to the public during the Australian Rules Football Grand Final in September 2009, Kraft filed numerous marks, including an application to register ISNACK 2.0, in Hong Kong in July 2009.

The media attention generated by the launch of the product was intense, although overall the public feedback regarding the trademark ISNACK 2.0 was not positive. Consequently, within days of launching the product Kraft announced that it was abandoning the name iSnack 2.0 in favour of the relatively descriptive Vegemite Cheesybite.

However, the question remains: would the launch of the product under the name Vegemite Cheesybite have been anywhere near as successful had ISNACK 2.0 not been adopted as the trademark initially?

Businesses engage trademark practitioners to anticipate and identify issues, and to apply their legal knowledge to resolve trademark-related problems. As such, trademark practitioners generally encourage businesses to adopt unique, distinctive and memorable marks rather than descriptive or laudatory marks.

However, good trademark practitioners also appreciate that marketers want to convey messages about their products and services to consumers as quickly and effectively as possible. From a marketing perspective, it is easier to familiarise consumers with a product through innovative uses of descriptive marks than with invented marks.

Although many have now dismissed the fiasco as a marketing stunt, the iSnack 2.0 example highlights that trademark practitioners should familiarise themselves with the objectives of the business, thereby understanding the commercial reasons behind a marketer insisting on a descriptive or laudatory mark. In that situation, the trademark practitioner can suggest other ways of sufficiently distinguishing the goods or services, such as leveraging the successful aspects of a brand to promote new products under different marks with minimal risk to the primary brand.

Setting aside the fact that product sales have reportedly exceeded expectations, the most successful aspect of the iSnack 2.0 campaign appears to be that Kraft can now use the publicity to help to secure registration of a relatively descriptive trademark. It proves that there is no limit to what a business can achieve through the right combination of trademarks and brand marketing.