What’s in a name?

A trademark is a brand name, a slogan or a logo. To be successful in a Trademark Registration the mark must identify the services or goods and distinguish them from those of another.. If your trademark does not comply with these requirements, you will not be able to register or protect your brand and a competitor intending to use a similar name for their business or product will be entitled to do so.

An example of unregistrable trademarks, which many companies have fallen victim to, is the use of words or phrases reasonably required for use in a specific field of trade. The Companies and Intellectual Property Commission (CIPC) uses the word “server” as an example to explain this concept. They explain that should the word “server” be registered for computer services, nobody in that field of industry would be able to use the word in their everyday practice. This would be detrimental to the traders of that industry which is why the Trademarks Act 194/1993 prohibits these trademark applications.

What about famous descriptive and generic brand names such as Apple? This brand name could be registered as the word does not relate to the industry – if Apple however had to sell fruit instead of computing and technology products, the name would be unregistrable. Notwithstanding the examples above, there are several other types of unregistrable trademarks and it’s paramount to seek professional help when considering early stage branding.

If your trademark has not been registered or is unregistrable, someone in your industry could use similar identifying marks and you have very little power to stop them. It can be devastating when a competing business uses a similar name to yours and unethically exploits your brand. Moreover, this creates confusion in the marketplace and erodes your sales and bottom-line.

Conversely, your businesses’ use and promotion of certain names, logos and slogans might inadvertently infringe another company’s registered trademark. Consequences could be disastrous should the trademark owner demand that you cease and desist from further use of the identifiers that define your brand.

Absa: A distinctive name protects your brand even while you’re reinventing it

In July of this year, Absa rolled out a new corporate identity to distinguish itself from its erstwhile partner – Barclays Group. In statements made by CEO Maria Ramos, its new look was a conscious effort to ensure that Absa remains distinguishable in the market. To this end, Absa changed the bank’s logo, colour-scheme, and slogans. These branding devices have only been in the market for a few months but already enjoy strong trademark protection. Moreover, the new branding does not detract from the trademark protection conferred on Absa’s previous logos, colour-scheme, and slogans. This means Absa has not only distinguished itself to capture new customers but simultaneously protected its old branding worth several million Rand.

What’s the secret ingredient?

How was Absa able to do both? How can a company’s new logo, colour-scheme and slogans be so powerfully associated with its brand despite only being in the market for a few months? After all, Absa’s logos and devices are intended to distinguish Absa as a different company from the Absa-Barclays predecessor? Absa’s secret ingredient is that the wording “Absa” is not generic nor purely descriptive. It is unique, containing specific identifiers that enable Absa to simultaneously protect its current brand and previous identifying devices.

The lesson is clear: whether you’re a start-up about to commercialise or an established company in the market – now is the time to consider if features that define your business are capable of trademark protection. A distinctive name goes a long way in doing so. In the digital paradigm where business changes quickly, Absa’s new look teaches us a valuable lesson:

You shouldn’t underestimate what’s in a name. Take that first step to protect your company, contact SwiftTechLaw here for professional legal advice.

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