- Posted by lawyeradmin
- On November 20, 2014
There are many ways to describe what makes a great brand. Being a sailor, I often think in terms of sailing imagery. In that context, imagine the marketplace as a dense fog, filled with names, logos, messages, information, content, and massive overload. A deep, dense, grey fog, where nothing is delineated clearly, and everything blends into everything else, and there’s no way to determine where you are in it. Just dark, damp, wet and cold. A great brand is the bright, constant, clear laser-like light from a lighthouse, cutting deftly and purposely through the fog. Creating an unmistakable path of safety. Creating in the beholder feelings of joy and relief, knowing that following that light will lead out of the dread of the fog to a place of happiness, safety and security.
So now that we know the vision and the mission, how does one create a great brand name that generates such clarity and joy? This is the subject of great debate, and the answer(s) sit at the intersection of branding business and law.
There are marketing professionals who believe that names that describe some aspect or quality of a new product are the best because it takes less time to explain to prospective customers what the product does or the need it fulfills. They may play with the spelling to try to add a distinctive flavor to the word, or add a gTLD like “.com,” but the result is still a descriptive name. Examples are: After Tan (after sun lotion), Beer Nuts (salted nuts), Computerland (computer store), Frosty Treats (frozen desserts), Tender Vittles (cat food) and Tintz (hair coloring). Words of puffery like “Premier,” “Best” and “First” also are considered descriptive.
The challenges with using such a name are many. Here are a few: (1) words that are too descriptive may legally be generic and not protectable as a legal trademark – one well known example is pets.com, which cannot be used to stop petco.com or petstore.com, etc. (2) competitors legally are allowed to use descriptive words to describe their product, including words that are being used by another as a brand name – for example, Consumer Reports, the magazine name, couldn’t stop a competitor from using a tagline like “reports for educated consumers” (3) if there are a lot competitive products being sold under brand names, tag lines, domain names, etc. that all use similar words, how are consumers going to figure out which is which? In such a case, the fog remains and envelops the little light that struggles to get through (4) trademark law doesn’t protect descriptive names – one has to spend a lot of marketing dollars to elevate a descriptive name into one that is protectable (this elevation is legally called “acquiring distinctiveness” or “acquiring secondary meaning”) – but even then these names can’t be used to stop others from using the same words to describe their competitive products.
If the idea is to have a unique brand name, then choosing one that describes the product, its function or its purpose won’t do that. It may work for a while if the product is the first of its kind in the market, but smart competitors soon will find a way to use those same words to confuse the marketplace. A fog machine, so to speak.
The lessons to be learned from highly successful, very protectable brands like Nike, Apple, eBay, Google, Yahoo, Tumbl’r, Facebook, Waze, and others are that (1) simplicity, two syllables or three at the most (with a nod to InstaGram, Timberland and others) are easiest to remember and effectively blast through the fog and (2) names that have no relationship to the product and are fun to say (Nike, Yahoo!, Google. eBay) or have a kind of relationship to the product (Facebook, Waze, InstaGram) are easiest to remember, and there is no threat of competitive descriptive use of these names. Combining them with powerful visuals, like logos, or memorable slogans that can be featured as part of an inspiring campaign (“Just Do It”) makes them even better. And legally, these are the easiest to protect. Generally speaking, trademark law rewards brand owners that choose non-descriptive names and make their brands known – the less descriptive and the more well-known the brand, the more protection is granted.
Pre-internet, some believed that these non-descriptive names were more difficult to introduce into the marketplace because it was hard for consumers to remember made-up words. That appears to be true for some names that are completely made up and have syntaxes that are uncommon, since people tend not to easily remember words that have no meaning or context (for more on this, and how people think and understand, a must read is Daniel Kahnemans’ brilliant work, “Thinking, Fast and Slow”). Simple names that are not made up but are used for products they don’t in an way describe (Apple, Nike, Yahoo, Google) or which have a suggestive, but not descriptive relationship to the product (Waze, Facebook) have a good chance of being remembered. And of course really effective pre-Internet, advertising and promotion were a lot less precise and a lot more expensive than today’s creative strategies employing social media with other integrated campaigns to get a brand quickly known and loved (or not loved – the challenge of instant consumer feedback) to a targeted demographic.
So what is the best business and legal choice for a great brand name? Something easy and fun to remember that doesn’t describe the product it’s used for. Boost it with distinctive logos (literacy in the world is decreasing, so powerful symbols may be even more important than brand names – think the Twitter bird, the Nike “swoosh,” the Target “bulls eye”, etc.) and support it with great marketing creative and strategy that drives home the brand message. And most important – integrity and responsiveness (great customer service) is still key since the brand name is the symbol of the reputation of the company and products it represents.