Trade Marks and Brands: Maximising the Value of Trade Mark Practitioners and Marketers

While trade marks and brands both serve the function of quality indicators, there is a fundamental difference between the two. Put quite simply, a trade mark is what the business says it is – a brand is what the consumer sees it as.

Successful businesses effectively market a brand by integrating and implementing the perspectives of both trade mark practitioners and marketers.

Difference between trade marks and brands

Trade marks are signs that denote commercial origin by distinguishing goods or services provided in the course of trade from goods or services provided by others. A registered trade mark is a proprietary right which gives the trade mark owner the exclusive right to use the mark in respect of the goods and services for which it is registered, and prevent competitors from using the same or a confusingly similar mark.

A brand, on the other hand, 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 personality, a character and a reputation. As put by one of Britain’s leading economists, brands encourage people to make statements about themselves to others:

I am irresistible, I say, as I put on my designer fragrance. I am a merchant banker, I say, as I climb out of my BMW. I am a juvenile lout, I say, as I pour an extra strong lager. I am handsome, I say, as I put on my Levi jeans. (John Kay)

Although a trade mark is only one aspect of a brand, a trade mark acts as a peg in the minds of consumers to which visual images, emotional connections and positive associations can be attached. These pegs need not be traditional words, logos and symbols, but can include aspects of packaging, shapes, colours, sounds and scents.

For example, think about computer products such as laptops, software and processors. As products, they are relatively abstract and possess no particular personality or image. Now think about the trade marks that distinguish these products from one another, such as APPLE, MICROSOFT and INTEL. Finally, think about what these brands stand for.

While the word APPLE is still the same trade mark as it was in the 1980s, the APPLE brand has certainly evolved and grown since then to become what it is today. Whatever image you possess of Microsoft, that image is probably attached to the red, green, blue and yellow colours of Microsoft’s ‘windows’ logo. By utilising a trade mark registration for a five tone audio melody progression, consumers are able to identify with the INTEL brand even though Intel’s product is essentially one or more internal components of a computer. These companies are no longer marketing products, they are marketing brands.

The role of trade mark practitioners and marketers in building a brand

Although trade mark practitioners and marketers approach the issue from different perspectives, it is the synergy of the relationship between the two that can provide the basis for building strong brands. Businesses engage trade mark practitioners to anticipate and identify issues, and to apply their legal knowledge to resolve trade mark related problems. As such, trade mark practitioners generally encourage businesses to adopt unique, distinctive and memorable marks rather than descriptive or laudatory marks because they are more likely to be available for use without conflict with a prior user, and be registrable and thus enforceable.

However, good trade mark 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. This is particularly the case where the product is expected to have a short shelf-life – where increased first-to-market sales may be more important than exclusive rights.

Trade mark 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 trade mark practitioner can suggest other ways of sufficiently distinguishing the goods or services. This can include the use of secondary trade marks, labels, aspects of packaging, shapes, colours, sounds and scents. The successful aspects of a brand can be leveraged to promote new products and services under different marks with minimal risk to the primary brand, as was seen by Kraft Foods, Inc’s recent VEGEMITE iSnack 2.0 promotion. There is no limit to what a business can achieve through the right combination of trade marks and brand marketing.


Despite the fact that trade mark practitioners and marketers bring together a different set of skills to a business, it is the effective combination of the two that can ultimately assist in developing brand equity, and a business marketing a brand is a business primed for success.