May 6, 2014
By Mary Carr Mayle, as published in the Savannah Morning News on May 6, 2014.
Asked to guess the “goodwill” value of the John Deere trademark — the difference between the company’s hard assets and its actual value as a business — most of the 100-plus in attendance at the Savannah Chamber’s Smart Lunch Tuesday were shocked to learn it was in the hundreds of millions.
After that realization, the crowd still wasn’t ready for the number as it related to Google, started 100 years after John Deere.
$11.5 billion.
“Unlike patents and copyrights, where the idea is to protect the holder’s innovation and creation, trademarks are designed to protect the buying public from confusion,” said HunterMaclean intellectual property attorney Rachel Young Fields. “A trademark is a representation of the reputation — or goodwill — of a company.
“Take Tylenol, for example. If you know Tylenol works on your headache and is safe for you, you trust that product and want to know that the next time you buy Tylenol you’re getting the same product, not a look-alike pain reliever.”
Among the top 100 most-recognized trademarks, Fields said, are Apple, Coca-Cola, Google, McDonald’s, Disney, Mercedes-Benz, Nike, UPS, Ebay, Shell, Starbucks, Chanel, John Deere, Dell and MTV.
“But it’s important to understand that none of these companies started out with a recognizable trademark. There’s a lot of hard work that goes into building a reputation, building goodwill and helping the purchasing public look at that mark and know what it means and what it stands for,” Fields said.
The advantages of having a trademark include customer loyalty, the ability to command and sustain price premiums based on that loyalty and the ability to capitalize on opportunities to expand that product into new categories, she said, adding that a perfect example of all three advantages is Apple.
“Apple enjoys almost unprecedented loyalty,” she said. “Because of that, Apple can set and maintain its prices at a profitable level without fear of losing customers. And Apple has certainly expanded its product line. In fact, it’s hard to remember when they only made computers.”
There are a number of ways a trademark can help a business stand out and be recognized by its competitors, said Fields’ colleague at HunterMaclean, intellectual property attorney Matt Henderson.
“Usually, trademarks are visual, although they don’t always have to be,” he said.
“The first thing you should do when establishing a trademark is to register the word or acronym, so you can use it in a number of different fonts and formats. Remember — Google, Disney and IBM weren’t always household names. Next, register your logos.”
Henderson pointed to Target’s simple red circle and bull’s eye as an example of an extremely effective logo.
“When you see that on a shopping bag, you know it immediately,” he said, adding that “Chick-fil-A’s marketing campaign with the cows and the ‘Eat Mor Chikin’ slogan is one of the best I’ve ever seen.
“Not only are they instantly recognizable, they make you smile.”
Colors can be registered, he said, citing Boise State’s exclusive blue football field, Owens-Corning’s trademark pink insulation and the lipstick red soles of Christian Louboutin designer heels.
Sounds, too, can be trademarked — think the three-note NBC chimes or the Aflac duck.
Just as a trademark protects the public and the company from confusion regarding a product, a trademark can be lost if it isn’t “policed,” Fields said.
“Hire a trademark search firm or do periodic searches yourself to make sure no one else is using your mark or one that is confusingly similar,” she said. “If you find one, you can have your attorney send them a ‘cease and desist’ letter.”
That’s important, she said, because allowing other companies to use similar marks can make your mark become generic and you could lose the trademark rights.
“Aspirin used to be a trademark until it became generic; so was yo-yo and zipper,” she said.
THE DIFFERENCES
- Patent — process, machine, manufacture, or composition of matter (or improvement) that is new, useful, and nonobvious (lasts 20 years).
- Copyright — original work of authorship fixed in a tangible medium of expression (lasts for life of author plus 70 years).
- Trademark — word, phrase, symbol, or design that identifies and distinguishes the source of the goods of one party from those of others (forever, if used and renewed).
- Trade Secret — information (e.g., formula, method, etc.) that is generally unknown by others in the industry and is the subject of reasonable efforts to maintain its secrecy (forever, if maintained).
- The symbol ® indicates a trademark that is registered with the U.S. Patent and Trademark Office. It is the strongest protection.
- The symbol ™ can be used by anyone with a new product to indicate the company claims that mark and is working toward a registered trademark. Offers significantly less protection.
