For any company, whether new or established, its name, logo and projected visual identity are fundamental. They are often the first point of contact with your customers, the benchmark by which you can be identified in the midst of the competition. But beyond the marketing aspect, these elements can and must be legally protected. This is where the concept of a trademark comes in. Often perceived as a simple name or design, a trademark is in fact a precise legal concept, a real asset for your business. Understanding what it covers, its functions and the vital importance of registering it is an essential first step in securing and enhancing the value of your business. This article aims to shed some light on these essential points.
The brand: much more than just a name or logo
What is a trademark in legal terms? Article L.711-1 of the French Intellectual Property Code states that a trademark or service mark is a sign used to distinguish the products or services of one natural or legal person from those of other natural or legal persons. The key word here is "distinguish". The primary function of a trademark is to enable the consumer to identify the origin of a product or service, to know that it comes from your company and not another.
This "sign" can take many different forms. The most common ones immediately spring to mind:
- The names : Whether they are invented words (sometimes called fancy names), existing terms diverted from their original meaning, or even patronymic names under certain conditions.
- Logos and designs : Figurative, abstract or representative elements that become the visual emblem of the company.
- The slogans: Short, punchy phrases associated with the company or a product.
But the concept of a trademark is even broader. Provided certain requirements are met, a trademark may also include the following:
- Three-dimensional shapes : The particular shape of a product or its packaging (think of the Perrier or Coca-Cola bottle).
- Sounds : A short musical jingle, a specific sound sequence (the sound when a computer starts up, for example).
- Colours : A single colour or a specific combination of colours, applied in a certain way.
- Other more atypical signs include holograms and position marks (a distinctive element always placed in the same place on a product, like the little red label on the back pocket of a pair of Levi's jeans).
It is important not to confuse the trademark with other signs used by the company. The trading name is the name under which your business is known to the public (for example, "Boulangerie Dupont"). Visit company name is the official name of your company, as registered with the Registre du Commerce et des Sociétés (e.g. "SARL Dupont & Fils"). L'signThe "Au bon pain" sign identifies the commercial premises ("Au bon pain" on the shop front). While these signs may sometimes be identical to a trademark (Renault SAS sells cars under the Renault brand), they have distinct functions and legal systems. Trademarks are specifically designed to identify the commercial origin of goods. products and services proposed.
The strategic functions of the brand
Why is branding so important? Because it fulfils a number of functions that are vital to the development and longevity of your business. These functions go beyond simple identification.
Firstly, the distinguishing function. This is its primary raison d'être: to enable your customers to recognise your products or services among the plethora on offer on the market. In a competitive environment, differentiation is not only useful, it's necessary. A strong brand creates an immediate point of reference.
Next, the guarantee of origin and quality. A brand is a promise made to the consumer. It assures them that by buying a product or service bearing this brand, they will find a certain level of quality, consistent characteristics and a reliable source. This trust is a powerful driver of loyalty. Imagine the value of a well-established brand, synonymous with reliability and customer satisfaction.
The brand also has a communication and advertising function obvious. It is the medium for your image, your values and your story. Marketing and advertising investments aim to build and strengthen brand awareness and appeal. It becomes a rallying point for your customers, sometimes even a symbol of belonging.
Finally, and this is a point that is often underestimated by company founders, the brand is a key factor in the success of a company. valuable intangible assets. Unlike a simple name, a registered trademark is part of a company's assets. It has an economic value that can be assessed, increased by investment and operation, and which can be used in the following ways assigned or licensedgenerating direct income. It is an essential component of your company's intangible capital.
Why is registering your trademark crucial?
Given these strategic functions, it is easy to see why it is not enough to simply use a name or logo. Registering the trademark with the relevant office (the INPI in France, the EUIPO for the European Union) is the step that transforms this sign into a genuine property right for the company.
Registration gives you a exclusive property rights on the sign for the goods and services you have designated in your deposit. This is specified in article L.713-1 of the French Intellectual Property Code. In practical terms, this means that you are the only person who can legitimately use this trademark for these specific activities in the territory concerned. You have a legal monopoly.
This monopoly gives you the power toprohibit third parties use an identical or similar sign for goods or services that are identical or similar to your own, if this creates a likelihood of confusion in the mind of the public (articles L.713-2 et seq. of the CPI). Registration is therefore your shield against imitators, unfair competitors or those who would like to take advantage of your reputation (parasitism). Without registration, your ability to act is considerably weakened.
Registration provides a a solid legal basis and official proof of your rights. In the event of a dispute, the registration certificate makes it much easier to defend your interests. It establishes a definite date for your rights (the filing date) and a presumption that your trademark is valid. Taking action for infringement without a registered trade mark is much more complex and uncertain.
Finally, registering your trademark allows you to securing your investments. This protects the time, energy and money you devote to developing your business, communicating and building your reputation. Registration perpetuates the value you create around your brand. It is also a guarantee of reliability for your partners, customers and potential investors.
The risks of an unprotected brand
Conversely, neglecting to register your trademark exposes you to significant risks, which can sometimes jeopardise your company's future.
The first risk is the loss of control. Without registration, any competitor can decide to use a name or logo that is identical or very similar to yours. You will have only limited means of action (such as an action for unfair competition, which is more difficult to prove) to prevent them from doing so. Your image may be diluted, your customers may be deceived, and the reputation you have taken time to build may be tarnished by inferior products or services associated with a sign similar to yours.
The absence of registration makes it very difficult, if not impossible, for any effective action against counterfeiters and imitators. You leave the field open to others who would like to copy your successes without having to make the same investment and creative effort. The economic damage can be considerable.
Another major danger is the loss of precedence. Imagine the worst-case scenario: you've been using a name for several years, you've invested in it, your customers know it... but you haven't registered it. A competitor, in good or bad faith, registers "your" name as a trademark before you do. Under certain conditions, they could legally prohibit you from continuing to use this name, even though it is yours commercially! Having to change your name along the way (rebranding) is a costly and destabilising operation.
Finally, an unregistered trademark is a virtually non-existent assets from a legal and financial point of view. It will be very difficult to put a value on it when you sell your business, attract investors or even obtain financing. The legal certainty provided by registration is a key element of intangible value.
Protecting your brand is more than just an administrative formality; it is a fundamental strategic management act for any company concerned about its development and legal security.
To assess the best protection strategy for your distinctive signs and ensure that your brand is a solid asset for your future, don't hesitate to contact our firm to discuss your options.
Sources
- French Intellectual Property Code, in particular articles L.711-1, L.713-1, L.713-2.
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