Luxembourg: Brand And Trademark: Where Marketing Meets Law

The terms "trademark," "brand," and "trade name" are often used interchangeably, though they describe different things in a different context. Especially when used by people in different departments of a company, the understanding of the terms can be different.

It often happens that a company's trademark is confused with its brand and on top of that, the brand name or trade name. A trade name is a name under which a company pursues its business and needs to be distinguished from the entity's registered or legal name. Many countries require registering a trade name or business name in a special register. A trade name often is designated by the term "doing business as," "trading as," or "operating as" to make this distinction from the legal name. A company's brand on the other hand only exists intangibly, in the minds of the public.

When used in a marketing context, the brand has two primary goals: first, to represent the company in public to create maximum awareness and recognition for the organization and its business proposition. This is done by the absolute basics: the brand name (often the trade name), the claim (which often reflects the company's mission statement) and visually by the logo. Second, the brand is a basket that offers the promise to meet clients' expectations for a certain quality of a product or service. For a marketer, a brand is what represents the values of a company and aims to create awareness and trust. This is created through personal contact with the client in connection with the use of services or products, contact with sales or client support, or through brand communication (marketing). 

The trademark, however, is the legal means to protect the intellectual property associated with an identifier of a business. The trademark can be in the form of a symbol, logo, design, word, slogan, or combination of several elements. In some instances, even a sound, smell, or taste can be protected. Legal protection is of the utmost importance for any business because the marketing department has spent a lot of time defining and documenting the company's unique selling proposition (USP), core values, market position, corporate identity and brand strategy. It can only be unique, though, if no market participant can copy it.

Some history

The word "brand" has its origin in the days when shepherds used to place burn marks on their livestock with a branding iron in order to differentiate it from the livestock of other shepherds. After the Industrial Revolution, goods were being sold all over the world and manufacturers recognized the need to have their products identified and differentiated from others. This led to brand names and ultimately to brands being protected by trademarks. Brands are an important part of the business landscape and their importance continues to grow with globalization. Creating brand recognition can be costly and companies are willing to spend vast amounts of money for building it up. Compared to this, the costs for registering a trademark are negligible. A trademark is a right granted by the state and serves as a protection for the investment in a brand. It provides the owner with an exclusive right to prevent others from using its brand in an identical way, but also from creating confusion by using a mark that is similar, or simply exploiting its reputation. 

Now, let's get legal

A trademark distinguishes the origin of goods of one party from those of others, while a service mark is essentially the same, but distinguishes the origin of services rather than goods. The ability to distinguish goods and services from different sources is called the origin function. Other functions of trademarks include the quality function, which refers to the promise of certain positive attributes and subjective values and the communication function, which conveys the trademark image through advertising to and between consumers. Scholars and courts largely accept these concepts and the L'Oreal/Bellure case (CJEU, 18 June 2009, case C-487/07 at para. 58) is a great example. In the case, it was said that "these functions include not only the essential function of the trademark, which is to guarantee to consumers the origin of the goods or services but also its other functions, in particular that of guaranteeing the quality of the goods or services in question and those of communication investment or advertising." Brand functions are similar, but relate additionally to identity, image, personality, character, culture, essence, and reputation.

Brand equity: the "intangible" economic value

The creation of Intellectual Property requires a considerable investment, as does its subsequent protection. A clear value must economically justify all this. The "brand equity" in this context represents the economic value of a well-established and well-protected brand. Experience shows that recognized brands are a lot easier to sell than those that are hardly known. Brand recognition simplifies the decision-making process for potential customers as the quality promise of a brand reduces the complexity of the buying decision. A well-established brand not only increases the effectiveness of marketing campaigns, but also enables the company to secure margins and potentially extend the brand to new services or product lines. Brand equity is a part of a company's intangible assets, but even though it is not tangible, it represents an increasing share of a company's value that can be monetized. Most companies are worth more than the sum of their tangible assets.

So, what's the conclusion? 

Seen through the eyes of a marketer: It's clear that trademark and brand are closely linked and can't be separated. A brand can be referred to as the representative elements of a company's corporate image, which builds and develops over time by creating trust, while a trademark provides legal protection for the brand. As companies don't want to lose the capital investment they made in creating their brand, they should utilize trademark protection. Trademarks do not need to be registered, but there are certain facilities granted to the owner of a registered trademark as opposed to the owner of an unregistered trademark who often has difficulties to prove the existence and extent of its right.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions