The answer to this question is complex and nuanced. In the last decade or so, it has become fashionable to insist there is some stark dichotomy between what a trademark is and what a brand is. But the difference is not as stark as some marketers would like you to believe. The traditional definition of trademark is:

• A specific design, logo, mark, word, phrase, etc.
• That consistently identifies the commercial source
• For some goods or services
• In the minds of the relevant consuming public

Of late, the term “brand” is being used to carve out, as a separate topic of inquiry, the fourth part of the trademark definition. That is, “brand” is being used to discuss the mental images, emotions/feelings, and associations that consumers have when seeing a trademark. And there is some validity in this since it has always been said that trademarks create other associations/impressions beyond the one that associates the mark with a product/service. Thus, trademark owners have been advised that the careful and purposeful nurturing of a trademark can create, in the minds of the relevant consuming public, the belief that the trademark stands for other qualities like luxury, reliability, status, good value for the money, deliciousness, health, freshness, etc. Note that these qualities relate in some way to the product or service being sold.

The recent push for “branding” has gone a step further, arguing that trademarks can also stand for values that are social and political in nature. These values do not relate to the product or service, but describe the “culture” of the business or company that is providing the products and services. When described in this manner, we can say that “no,” trademarks and brands are NOT the same thing.

On the other hand, brands do not exist without trademarks. That is, no mental/emotional image or impression is made by a “brand.” Those images/impressions are only created by the trademark.

Furthermore, there are no legal protections for a “brand.” There are only legal protections for trademarks, which come into existence through the use of the trademark in commerce. That is, trademarks must be used in the sale of products or services. Trademark rights can exist at common law or through registration of the trademark. In either case, the trademark owner has the right to prevent others from infringing the trademark by using the same mark (or a confusingly similar mark) without permission or licensing. Registering a trademark is done through application with a State-level government office, with the federal U.S. Patent and Trademark Office, or with international organizations. Generally, a registered trademark has stronger legal protection than an unregistered trademark. Further, in the U.S., registration provides nationwide coverage and notice to others of the trademark’s existence and ownership.

So, from this perspective of commercial usage, it can be said that “brands” and “trademarks” are synonyms that identify the same thing.

Contact the Trademark Attorneys at Revision Legal

For more information, contact the experienced Trademark Lawyers at Revision Legal. You can contact us through the form on this page or call (855) 473-8474.