We IP lawyers love to caution our clients against selecting generic (“non-distinctive”) brands. We do this for several reasons. First, there’s the obvious and cynical reason: we make a living helping our clients protect their IP. Distinctive brands are protectable. Descriptive brands aren’t – or if they are, they come with a disappointingly narrow scope of rights. So it’s in our interests to lobby our clients to select distinctive brands.
But there’s a more powerful commercial reason to choose a distinctive brand. With rare and inspired exceptions (VERY GOOD FALAFEL, here’s looking at you) descriptive brands usually feel lame and underdone. It doesn’t take much brainpower (even for a lawyer) to come up with A+ ELECTRICS, ECO BUILT or BARD DRAMA SCHOOL. If you’re a new entrant in an already-cluttered landscape, choosing a descriptive brand is kind of like wearing regular clothes to a fancy-dress party. You’ll need to rely on your personality to set you apart. That can be hard when there are already 50 amazingly dressed guests in attendance, as well as another 30 wallflowers. If SUPER PRODUCTIONS and SANDWICHFACE MEDIA are both standing awkwardly by the hors d’oeuvres, I know who I’m sidling up to.
There are certain industries where it’s customary to choose non-distinctive brands. Universities, airports, management consulting – these fields are littered with “blah” brands that earn their trade mark credentials over time through use. Often these blah brands end up being contracted to abbreviations that assume independent brand significance: I don’t need to tell you what NYU, LAX and BCG signify. Blah brands might be acceptable in fields dominated by a small handful of players. But they pale into insignificance in densely populated markets such as FMCG. In a crowded field, a blah brand represents an opportunity missed: to set one brand apart from the others; to be memorable; to be a hook onto which the consumer’s fickle and time-poor mind will latch.
Relatedly, a descriptive brand is also vulnerable to encroachment, even if it becomes well-known. Let’s say you pick a descriptive brand but manage to make a huge success of it. Over time, the brand might actually lose its blahness and become quite cool. Still. The turf you secure around the brand is likely to be pretty paltry. Your competitor mightn’t be able to directly copy your brand but they may get away with a minor variation. There’s an old saying in trade mark land, which I will clunkily paraphrase: if you adopt a descriptive brand, don’t complain when someone else launches a similar brand and confusion occurs.
This principle might help explain the proliferation and subsequent not-so-peaceful coexistence of the following trade marks:
I always thought that MAN WITH A VAN was the original. Turns out poor MAN AND HIS VAN was the first mover (!).
So, if you want to adopt a descriptive brand, do so with eyes wide open. Understand the potential limiting effect of non-distinctive branding and work on your personality: invest in making your product or service the best. If your venture fails, your brand might’ve hampered you. If your venture succeeds, great! Now expect imitators. When your IP lawyer advises that you can’t stop the imitators, that’ll be a bitter pill to swallow. If you can’t be unique, at least try to be the best.
