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Aleck Ncube
THE following are common mistakes made by enterprises and SMEs — focusing on trademarks instead of branding, not registering their trademarks that need to be registered, wasting a lot of time and money registering worthless trademarks and lastly, wasting time and money by filing trademark applications that have no chance of being approved by the IP Office(s).

Difference between a trademark and a brand
A trademark is a distinctive sign or indicator used by an individual, business organisation, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or services from those of other entities.

A trademark is designated by the following symbols:

™ (for an unregistered, that is, a mark used to promote or brand goods)
? (for an unregistered service mark, that is, a mark used to promote or brand services)
® (for a registered trademark)

A trademark is typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements. There is also a range of non-conventional comprising marks, which do not fall into these standard categories, such as those based on colour, smell, or sound. A brand is the identity of a specific product, service, or business.

A brand can take many forms, including a name, sign, symbol, colour combination or slogan. A legally protected brand name is called a trademark. Brands are an identifying symbol, words, or mark that distinguishes a product or company from its competitors. Usually brands are registered (trademarked) with a regulatory authority (IP Office) and so cannot be used freely by other parties.

Enterprises and SMEs must make branding an essential part of their marketing strategy.

Branding is about securing the future of an enterprise or SME and its products and services by building loyalties using emotional as well as rational values.

Such values matter because they are exchanged for cash in the marketplace and affect the perception of an enterprise or SMEs products and services as well as its ability and its freedom to manage its future.

A brand must be inclusive as it entails tangible and intangible benefits provided by a product or service: the entire customer experience.

It includes all the assets critical to delivering and communicating that experience, the name, the design, the advertising, product or service, the distribution channel and the reputation.

Developing a branding strategy requires an enterprise or SMEs to define their customer as well as defining their market. It is important to choose a good trademark as in most businesses the brand, and the trademark, are one of the most valuable assets.

Branding is an expensive exercise that takes time. But, once consumers ask for your product by name, a business is set to capitalise for years to come.

Branding requires the development of unique attributes so that your products are instantly recognisable, memorable and evoke positive associations.

Strong, well-known products provide enterprises and SMEs with a real competitive advantage. Enterprises and SMEs must always remember that coming up with the right name helps to sell their products and services as it bestows individuality and personality, enabling customers to identify with their offerings in the process making products and services tangible and real. Enterprises and SMEs must strive to use the power of branding to imbue their products with personality and meaning, ensuring they achieve a prominent place in the marketplace.

Therefore, choosing the right company name, product name, logo, packaging, and promotional activity all to convey a personality and build a “BRAND” must be one of the cornerstones of enterprises and SMEs. Intellectual Property Rights specifically trademark registration can be used to protect your brand and aggressive enforcement employed to prevent others from cashing in on its success. Free Riding!

Brand names such as Coca-Cola, Gucci, Apple, Marboro, Kellogg Cornflakes and Levi Jeans are valued in billions of dollars. These companies have all experienced cases of infringement of their Intellectual Property and they enforce their rights vigilantly.

Through Intellectual Property, Enterprises and SMEs can protect their valuable assets and keep constant vigil against piracy and counterfeiting.

According to a study by RT Green & T Smith (2002) published in the Journal of International Marketing, counterfeits and pirated goods come from a wide range of industries namely apparel, automotive parts, pharmaceuticals, books, films, CDs, Computer Software, etc.

At one time estimates showed that more than 10 million fake Swiss timepieces carrying the famous Cartier and Rolex brands were sold every year racking illegal profits up to $500 million.

Estimates also indicate that unauthorised use of US patents, trademarks, and copyrights amounted to over $75 billion annually and owners of brands are at risk of losing revenue from the illegal use of their brands while countries lose millions of jobs.

Counterfeits can destroy brand value because the counterfeit product sometimes fails to perform or does not meet quality expectations. In the case of counterfeit drugs active ingredients are often missing or in wrong quantities and in some cases harmful ingredients are used causing physical harm to consumers.

The pharmaceutical manufacturers association estimated that two percent (about $6 billion) of the $327 billion worth of drugs sold each year were counterfeit posing great risks to many people all over the world. In some African and Latin American countries as much as 60 percent of the drugs are counterfeit and according to a WHO estimate — eight percent of bulk drugs imported in to the US were counterfeit, unapproved or substandard.

Failure to protect Intellectual Property adequately in the global marketplace can lead to the legal loss of rights in potentially profitable markets. Some companies have found their assets appropriated and profitably exploited in foreign countries without license or reimbursement.

There are cases where companies have legally lost the rights to trademarks and have had to buy back these rights or pay royalties, for example, McDonald’s case in Japan.

Why enterprises and SMEs should define their brands
To ensure that they have a fresh, compelling and competitive proposition, to ensure that their brand works strongly at an emotional as well as at a rational level, to ensure that their brand can be delivered consistently and in full by all its stakeholders.

Brands need to provide customers with a consistent, compelling experience in order not to confuse them, as confusion leads to doubt.

Everyone associated with the brand must understand its key dimensions in order to deliver this consistent experience, and it helps if customers can be given a short slogan which encapsulates the essence of the Brand.

Enterprises and SMEs must seize the opportunity and invest in Intellectual Property so that economic benefits from their Intellectual Property Assets accrue to the organisation and the country through improved profitability, or through licensing and technology transfer activities in the global arena.

In the next instalment, I will focus on how enterprises and SMEs can leverage on copyright and its related rights for profitability.

Aleck Ncube is an Intellectual Property Scholar. He can be contacted on [email protected] or follow me on Twitter: @aleckncube