Bleach. Sodium hypochlorite. NaClO. One atom each of sodium, chlorine, and oxygen.
One bottle of bleach is the same as the next. If you were to add one tiny oxygen atom, you’d have sodium chlorite. Subtract the oxygen atom and you’d have sodium chloride, also known as salt.
Clorox is the number-one selling bleach in America. At the grocery store, it takes up about three quarters of the shelf space allotted for bleach, and it sells for a 27% premium over its generic competition.
But that store-brand bottle of bleach contains the same thing that’s in the Clorox bottle. If it were even one atom off, it wouldn’t be bleach. So why do people buy Clorox and pay so much more for it? That’s the power of the brand.
Brands — trademarks — serve as a shorthand way for businesses to communicate the quality and experience you can expect from their products or services. You know exactly what you’re going to get when you buy a Black & Decker wrench, a McDonald’s hamburger, or a Starbucks coffee. That shorthand communication is very powerful. It can be so powerful that, when a simple sticker is attached to a bottle, it can get people to pay a lot more for a chemical compound like bleach.
If you’re a business, you want to establish a brand. Once you do, you’ll be able to make more sales and charge a premium for your product or service, just like Clorox does.
So what does this have to do with the law? The power of brands are protected by trademark law. Trademark law recognizes and seeks to protect the blood, sweat, tears, and money that businesses invest in building their brands. And trademark law benefits consumers, too. Businesses, knowing their investments will be protected, have an incentive to invest in developing quality products and services and building a reputation.
Before you select the name for your business or product, you want to make sure that someone isn’t already using that name, slogan, or logo or something similar for related products or services. And after you’ve selected or established your brand, you need to protect it, through registration with the U.S. Patent & Trademark Office, and through litigation if necessary.
What’s in a brand? That which we call Clorox by any other name would smell the same, but people won’t pay a 27% premium for it.