Simplistic branding: Avoiding the pitfalls

Simplistic branding: Avoiding the pitfalls

3 December 2019

Cosmetics and personal care brands are increasingly selecting short, snappy and simplistic trade marks to capture consumers’ attention in a saturated market. The digital age continually presents new challenges, prompting brands to shift their focus from traditional over-the-shelf transactions to the multi-dimensional online realm in which endorsements by social media influencers and hashtag led marketing campaigns are on the rise. Competition is fierce, necessitating an immediate connection between the product and consumers in order to secure a purchase. It is unsurprising that brands are opting for names which come close to describing the product in question in order to entice consumers during their internet search or social media scroll.

So what must be considered when selecting a name to register as a trade mark? A trade mark is essentially a platform of communication between a product and consumers. On the one hand, simplistic brand names facilitate the creation of an instantaneous relationship with consumers by getting straight to the point and being easily remembered. However, the drawback of being too literal about the name of your products is that simplistic words can be difficult to register. A registered trade mark gives you the means by which to stop others copying your brand, but there is a specific legal criteria to bear in mind: it must not be descriptive and must be distinctive. In other words, it must not directly describe your product e.g. ‘Soap’ for soap and not be commonplace, e.g. ‘Your Skincare Essential’ for a cosmetic product.

So how do you successfully register your brand name as a trade mark?

1. If you can’t avoid registering inherently descriptive or commonplace words, consider adding some stylisation or altering the spelling – sometimes the addition of a logo or quirky spelling can overcome an objection based on being exclusively descriptive

2. Consider using the descriptive or commonplace word(s) as a means of acquiring distinctiveness through use of the mark. This can be difficult and requires making substantial and widespread use of the word(s) in a trade mark manner. The aim is to demonstrate that your advertising and marketing initiatives have educated the public to recognise your brand name as a trade mark, and not merely a description of the product

3. Think about choosing an allusive or suggestive brand name. Whether or not a brand name is exclusively descriptive is usually a question of yes or no. However, if a word or phrase is not the apt term, then it may be registrable because the mark only indirectly refers to the products

Selecting the right brand name for you is no easy task. After all, it’s a reflection of your brand’s identity. Before investing in packaging and marketing materials, we strongly advise considering the pitfalls of a simplistic brand name and being aware of the strategies to overcome them.

Marisa Broughton

Trade Mark Group

If you require further information on anything covered in this briefing, please contact Marisa Broughton (mbroughton@withersrogers.com; +44 1179 253 030) or your usual contact at the firm. This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Withers & Rogers LLP December 2019