One of the greatest challenges facing those who market innovative products or services, is educating consumers about what the new products or services are, and what they can do for the consumer. Consumers usually won't buy something unless they understand what it is and have reason to want it. And one of the greatest tools available to the marketer to help meet this challenge is logical organization or categorization. If consumers can come to understand what the new thing is and what it does, the chances improve that they may want one, so if marketers can categorize the new thing as similar-to-but-better-than something familiar, chances improve that the consumer can develop a need or desire for it. As savvy marketers have known for many years, product categorization is the fundamentally important bedrock upon which much else rests, and whole categories of products and lines of specific products within them have been developed based on a clever marketer's recognition that consumers can, and will, draw finer and finer distinctions that influence their purchasing decisions if encouraged to do so.
To understand this, one need look no further than the creation and evolution of the now-ubiquitous SUV market. Thirty years ago there was no such category of vehicles, but now there are small SUVs, large SUVs. hybrid SUVs, crossover SUVs, etc. etc. It is not unusual to hear "If you are looking for an eight-passenger SUV...," or "Introducing the first full-sized hybrid SUV...," or "This luxury crossover SUV offers..." in commercials from the automakers as they watch consumer demand for different varieties rise and fall. And the automakers have responded with whole lines of SUV products to create and meet the demand for these varieties, so that, as just one example, the Korean automaker Kia Motors offers a Borrego full-sized SUV, a Sorento mid-sized SUV, a Sportage small SUV, a Rondo compact SUV, and even a Soul compact crossover SUV.
But one of the problems with assigning a separate trademark to each product occupying a different niche in your system of categories is that it can lead to consumer confusion and loss of recognition. Where once automotive companies may have had a half dozen or dozen car models bearing separate trademarks active in any year, now they may have two or three dozen if they pursue a naming strategy such as that of Kia above. Consumers are hard pressed to remember all the offerings in any company's line, or even to tell the difference between a Sorento and a Rondo merely by the name or mark alone. So another strategy is often employed to help with categorization but reduce confusion: the use of line marks. Line marks are trademarks applied to a whole line of products, rather than just a single product in the line. Often they are accompanied by additional designators to help consumers distinguish one product in the line from another, so, for example, one can now look not just for an iPhone, but an iPhone 3g, or an iPhone 3gs, each version having different features or capabilities. Line expansions often lead to the introduction of popular performance-distinguishing designators such as "super," "plus," "extra," or "sport," model-distinguishing designators such as "rx," "sx," or "lx," or feature-distinguishing designators such as "with Borax," "sea breeze scent," "diet," or "low-sodium." Used correctly, category descriptors, line marks, and product designators can help marketers educate customers and build brand loyalty for the company's products.
Unfortunately, they are not always used correctly – at least from a trademark perspective – so that sometimes what was intended to be one company's unique coined trademark is lost to it and given over for all to use. This happens because a fundamental principal of trademark law is that generic and descriptive terms are generally free for all to use, even if those terms are newly created by one company and have never been used by others. New terms are entering the language all the time, and there are hundreds of examples of newly-coined terms quickly (or over time) becoming generic terms, among them SUV, escalator, linoleum, aspirin, flash drive, and 3g network. When consumers recognize the new term as identifying a new kind of thing, rather than serving exclusively as one company's brand for that kind of thing, then the new term is a generic term and can't be claimed exclusively by any one company, even the one that coined it. Sometimes marketers inadvertently help consumers reach this conclusion – one fatal to any claim of trademark rights – by mixing marks and not-marks together when creating category descriptors, line marks, and product designators. Hence the title of this article and our quick tip for the month: treat new terms carefully and with logical consistency if you want them to remain exclusive to you.
Here's how this works. Say your company has just invented a new thing (it could be a whole new product or service, or just a slight improvement of some kind that you want to distinguish from what has gone before), and that you have been asked to market it as something new. Here's what to think about:
Most category descriptors are generic or descriptive terms. So, if you need a new category descriptor and the existing category descriptors around you are generic terms (e.g. sedan, compact, truck, station wagon), do not expect any new category descriptor you come up with (e.g. Sport Utility Vehicle or SUV) to remain exclusive to you. If the trees already in the row are generic, guess how consumers are likely to treat the new tree? So in that case create a "throw away" generic that you are happy to have your competitors use, and save your creative energies for a great line mark (e.g. Explorer, Range Rover, etc.) or a group of product marks (as in the Kia example above). Same if there are no existing category descriptors (you invent a whole new thing, an electronic moving stairway, and you call it an escalator, and guess what happens?). Don't fight it: create a new and easy to use generic term as your new category descriptor, use it liberally to identify the new kind of product or service, and expect others to do the same.
Most line marks should be just that – distinctive trademarks that distinguish your line of products from those of your competitors – so don't mix trademark trees with generic trees in creating line marks. If you have Glade for air freshener products, Minwax for a line of furniture polishes, and Tide for a line of laundry detergents, why choose "HandSoap" for a line of hand soap products? But perhaps more importantly, if any existing line marks you have are highly descriptive or generic, do not expect your newly coined and somewhat descriptive line mark to fare as well as it would in less descriptive company. If the existing trees in your row of line marks are the "Smart" line, the "Fast" line, the "Pro-Consumer" line, and the "Pro-Business" line, do not expect "Fast-Consumer" to survive long as an exclusive trademark of yours – your competitors will almost always be able to use these terms to describe characteristics of their products as well. There is nothing wrong with choosing generic or descriptive terms to identify lines of products and distinguish one line from another, just recognize that these terms are not protectable or exclusive to you (and they are not really "line marks") even if you apply them to your products or services before others do. So, to borrow a line from Yoda, "Do, or do not...": choose distinctive trademarks as line marks, or choose descriptive terms to identify multiple lines, but do not expect descriptive terms to become trademarks just because you use them first.
When you are talking about lines of products, most companies follow one of two basic branding strategies: A) create an effective trademark (e.g. iPod or Tide) to apply to the whole line at the outset, then add secondary marks (e.g. iPod Nano) or product descriptors (Tide With Bleach) as the line expands; or B) use generic or descriptive line discriminators (e.g. large SUV, small SUV, etc.), either under a single house mark (e.g. Dial hand soaps, Dial shampoos, Dial detergents, etc.) or with individual trademarks for products in the line (as in the Kia example above). Here again, either strategy can work well, as long as you don't mix trademark trees with generic trees. As suggested above, performance-distinguishing designators such as "super," "plus," "extra," or "sport," model-distinguishing designators such as "rx," "sx," or "lx," or feature-distinguishing designators such as "with Borax," "sea breeze scent," "diet," or "low-sodium," are descriptive and don't function well as protectable trademarks. So recognize the difference between secondary marks and product descriptors and don't put them in the same row. Since the term "nano" suggests tiny sizing to many people, Apple might have had a hard time claiming it as a mark if it had chosen to identify other products in its iPod line as "iPod Full," "iPod Compact," "iPod Mini," and "iPod Micro," as that would have given consumers and courts one more reason to see the term "nano" more descriptively. Similarly, having previously used Tide With Bleach, Tide With Bleach Alternative, Fresh Scent Tide, and New Foaming Action Tide, the makers of such a line would have a difficult time claiming that introduction of Tide SudsLess entitled them to exclusive use of the newly coined term "sudsless" since one could easily argue that consumers would perceive it as another descriptive product identifier.
In short, when you want to market something as new – especially if its a new kind of thing or a whole new line of products – logical organization or categorization can be a great tool. But be careful in developing new category descriptors, line marks, and product descriptors so that they achieve your branding objectives. As a general rule, category descriptors should be generic terms, line marks should be non-descriptive trademarks, and product descriptors (at least in a single line) should be one or the other. The more descriptive a term is, the more likely it is to fail as a trademark, so look at the forest before you add a new tree.