"What's in a Name?"
But will a Kiwi Fruit have the same appeal as a Zespri? This is a question which is soon to be asked by New Zealand growers who are about to start marketing the fruit with the designer stubble under its new name the ZESPRI. Failure to register KIWI FRUIT as a trade mark in New Zealand, and indeed in other countries, has led to overseas growers being able to market and sell the fruit at significantly lower prices.
The inability to preserve the exclusive right to use the Kiwi Fruit name has led New Zealand farmers to seek other ways to protect their market position and it is proposed to rename the fruit with the aim of increasing sales. This time the marketing board is making sure that the name is registered. But why has this particular name been adopted? It was devised by a UK branding company and was thought to suggest fun and zest. Perhaps it may do, so we shall wait to see.
There is clearly a valuable lesson to be learnt here, that is the importance of choosing an appropriate brand name and then ensuring that it is appropriately protected. The commercial advantage of using a trade mark to identify goods or services to distinguish a business' goods from those of a competitor is known but a mark also gives the customer a clear indication of the source of those goods. Use of a distinctive brand name is also a valuable marketing tool.
In the UK the principal current statute governing the registration of trade marks is the Trade Marks Act 1994. Section 1 of the Act provides that a trade mark is "any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings and may consist of words (including personal names), designs, letters, numerals or the shape of goods or their packaging". The Act has also sought to broaden the scope of what may be registered to include colours, sounds and smells if the marks can be presented graphically.
Romeo and Juliet Act II Scene II. William Shakespeare
Related further reading...
The Act goes on to set out the grounds for refusal of an application to register a trade or service mark. A mark will not be registered if it is not distinctive; or if it consists exclusively of a sign which may give an indication of the quantity, quality, value, purpose or other characteristics of the goods; or if it consists of a sign which has become customary in the current language or in the established practices of the trade in which it is to be used.
So how have some of the most well-known trade marks come about? How does a trade or business select a brand name or logo?
It is important to remember that potentially once a trade mark is registered it may remain in force indefinitely subject to payment of renewal fees. Over time and with use the mark will establish a reputation which will be a valuable commercial asset to the business or company.
Often the initial temptation when considering the form of a trade mark is to choose a mark which is as descriptive of the product or services as possible. However, difficulties can arise if the word is too descriptive as it will not have the required element of distinctiveness. Sometimes companies use different versions of the company name, for example, International Business Machines Corporation - 'IBM'.
It is interesting to note how some of the well-known marks came into being, for example:
LEGO is the registered trade mark of the company founded by Kirk Christiansen in 1932. The word is derived from the Danish words 'leg godt' meaning 'play-well' which was felt to be an appropriate name for children's toys and the play system later developed by the company and incorporating the famous lego brick;
The COCA-COLA mark is now one of the top three most valuable brand names in the world. The drink was created in 1886 by Pharmacist Doctor John S Pemberton and was known as "French wine of Coca". The name change to Coca-Cola was suggested by Dr Pemberton's partner, Frank Robinson, and now Coca-Cola and Coke are registered trade marks of the Coca-Cola Company and known throughout the world;
KODAK was devised by George Eastman and used in respect of the first Kodak camera which was introduced in America in 1888. The name was said to have arisen by the use of George Eastman's favourite letter, namely "K". He used it at the beginning and the end of the word with a combination of different letters in between which complemented the K's;
THERMOS was the registered name of Thermos Limited registered in the UK in 1907. Following the invention of the vacuum flask by Sir James Dewar in the early 1890's, Dewar's glass blowers, Burger and Aschenbrenner, obtained a patent for the vacuum flask in Germany and later went on to manufacture the flasks. The Thermos name arose following a competition organised by the company to choose a name, the word "Thermos" being derived from the Greek word 'therme' meaning heat;
TOBLERONE was the name given by the company founded by Johann Tobler in the late 1890's to the Swiss chocolate comprising of almonds and honey and was derived from the combination of the Italian name for nougat, 'torrone' and the name of the founder. The Toblerone Company is now part of the Suchard group and the triangular chocolate for which a patent was granted in 1909 is sold throughout the world;
MARMITE is the registered mark of the Marmite Food Extract Company formed in 1902 and the yeast extract takes its name from 'Marmite' a French word for Stewpot which still appears as a reminder on labels;
GOBLIN was the name given to the first domestic vacuum cleaner produced by the Vacuum Cleaner Company Limited founded by Englishman Hubert Cecil Booth on being granted a patent for his vacuum cleaner in 1901. It is reported he named the cleaner following the comment of the wife of one of the company's managing directors who said that the cleaner "was goblin' up the dirt".
Numerous such examples can be given and one cannot fail to see the importance a trade or service mark can be to a company.
There has been much debate in the past whether it is possible to register phrases and slogans and whether such registrations are a misuse of the process. Recently the registrations in the US by K T & T of the phrases "I don't know" and "I don't care" have been highlighted. This enterprising telephone company were taking advantage of the system wherein all long distance calls go through the operator. Callers are invited to choose a telephone company - such as Bell or AT&T -and those who say "I don't know" or "I don't care" have automatically, and inadvertantly, selected KT&T!
In the UK under the 1994 Act it is possible to register phrases and slogans if they are capable of distinguishing the goods or services. We are all aware of the registered phrases "Don't leave home without it" of American Express and "It's Finger Lickin' Good" of Kentucky Fried Chicken.
So what is in a name?
Editors note: Since this article was first published, in Inventors World magazine, all New Zealand Kiwifruits are controversially marketed under the brand name ZESPRI. However, in the UK at least, they are still resolutely referred to as Kiwifruits.