THE ART OF COINING

THE ART OF COINING

THE ART OF COINING A TRADE MARK

 A trade name is the official name which is used by the organization for its business activities. A trade name distinguishes a particular business from its competitors that are engaged in the same area of business. For example – the non-alcoholic beverage giant that goes synonymously with the term carbonated drinks, soda or pop, Pepsi, is incorporated as ‘PepsiCo, Inc’.

 WHAT’S IN A TRADE NAME?

Coining a trade name for an organization is one of the primary goal of an organization. An empire can be built on a rightfully coined trade name, while a wrong one can lead an organization into a swamp of legal complications and troubles. While crafting a trade name for a business, one must understand the legal and commercial intricacies. One must ought to select a trade name that can be easily registered as a trademark and still uphold its excellent marketing value. Coining a good trade name is an art requiring creativity to invent a name with strong legal and marketing value. The balance of both realms ensures a trade name to achieve everlasting recognition, goodwill, and success.

 

Relationship of Trade Name and Trademark

A common misconception among business professionals is that registering a Trade name provides the business a protection over the brand nameor unrestricted rights to utilize that name. A trade name and trademark, though interchangeably used in normal parlance, have entirely different meanings. A trademark provides the owner of the mark with the right to exclusive use and allows the owner to prevent any other business enterprise from using the trademark.

Mere registration of a trade name does not make the same as a trademark, and one must register their trade name as a trademark to fully utilize it in their business activities. Registering the trade name as a trademark should be of utmost importance, as its absence can lead to other organizations using the same name for their business for similar goods. Such an event will undoubtedly lead to a loss of profit for the organization and can lead to a loss of goodwill.

Coining a Good Trade Name: The Do’s and Don’ts

An individual should aim to coin a strong trade name that provides it with market recognition and can be legally protected. A business owner should craft a trade name that can be easily trademarked. A business owner must be mindful of the following while coining a trade name -

  1. Fanciful – A fanciful tradename is considered the strongest type of trademark. A fanciful trade name is formed by words that do not carry a meaning before their adoption as a trade name and are invented or coined. The term ‘Google’ (internet search engine) and ‘Kodak’ (manufacturing company) are the best example of a fanciful tradenames.
  2. Arbitrary – A trade name which is arbitrary to the business it is engaged in is considered a strong trade name. An arbitrary trade name is one that has a meaning but is unrelated to the goods and services to which it is applied. An example of an Arbitrary trade name is ‘Apple’, which is a fruit yet it isa trade name of a tech giant engaged in the business of manufacturing smartphones and computers. Similarly, the tradename ‘Amazon’ for e-commerce services and ‘Shell’ for gas stations.

Suggestive –A suggestive mark hints at or suggests the goods or services offered by the organization without directly describing them. An example of a Suggestive trade name is ‘Airbus’ for Airplanes and ‘Netflix’ for online streaming services.However, when coming up with a trade name, one should also steer clear of words and phrases that cannot legally be used as trademarks, as they constitute grounds for refusal under the Trademarks Act of 1999. The following are the Don’ts while coining a trade name.

 UNDER ABSOLUTE GROUNDS FOR REFUSAL (Section 9 of The Trademarks Act of 1999)

  1. One must avoid a Trade Name which exclusively contains marks or indications which serve in trade to define the kind, quality, quantity, intended purpose, values or geographical origin of goods or services rendered.
  2. Trade Names which exclusively contain marks or indications that have become customary in the current language or the established trade practices ought to be avoided as they cannot be registered.
  • Trade Name that is of such a nature which deceives or confuses the public ought to be avoided.
  1. An organization should avoid Trade Names which contain or comprise matters likely to hurt the religious susceptibilities of any class or section of citizens of India.
  2. Trademarks which contain or comprise scandalous or obscene matter.
  3. If the use of the specific trade name is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950, it cannot be registered as a trade name.

 RELATIVE GROUNDS FOR REFUSAL (Section 11 of The Trademarks Act of 1999)

  1. An organisation should avoid a Trade name which will confuse the public as it is identical to an earlier trademark of similar goods or services.
  2. An organisation should avoid a Trade name which will confuse the public as it is similar to an earlier trademark of similar goods or services.
  • Trade names that would take unfair advantage of a similar or identical earlier well-known trademark in India ought to be avoided.

 

Names Which Can not be Registered (Section 13 of The Trademarks Act of 1999)

Trade Names which have a word commonly used of any single chemical element or compound in relation to a chemical substance or preparation or international non-proprietary names cannot be registered as a trademark and, therefore, should be avoided.