Brand building, good or bad, will be directly embodied in the folder. If the brand building is positive, the contents of the folder will continue to increase and users will feel these associations, just as users can experience the new features and services when the files are upgraded. If the brand building is negative, the contents of the folder will appear disarrayed and users will be confused and consider the folder a headache and not to use it, just as users will discard or delete a file when it is affected by a virus.

 

Therefore, we must build a strong brand in order to keep its file folder “saved” in people’s minds and prevent consumers from deleting it. Brand design in the following text is one of the key steps in building such a strong brand.

 

Brand design is an image shaping process for a business or a product, including naming, logo design, graphic design, packaging design, exhibition design, advertising and promotion, cultural refining, and other identity elements which differentiate a brand from other businesses or products. It is an image entity which assists the development of enterprises. It can not only help enterprises grasp the development direction of the brand, but also create effective and profound memory recollection of the corporate image in consumers. In brand design, companies tend to choose certain brand elements, such as brand name, URL, logo, symbol, image representative, brand slogan, advertisement slogan and packaging.

 

Brand strategy guru Allen P. Adamson put forward six criteria for brand design: memorability, meaning, cuteness, convertibility, adaptability and protectiveness. Company trademarks should be distinctive, practical, aesthetic and contemporary. Color, figure, fonts and other visualization means should be integrated to enhance creativity and promote product marketing and sales. After analyzing the six criteria for brand element selection, we will find that the brand design shares the same or similar standards with trademark design and demands the legal or competition protection provided by trademark.

 

From the figure above, it is easy to conclude that the significance principle in trademark design is associated with brand design criteria to the highest extent. The memorability principle requires that the design elements should be identifiable and easy to recognize. Convertibility means that the design elements can be converted or applicable within or without product categories, geographic boundaries and cultural differences. Protectiveness requires that brand elements can be protected by law.

 

The distinctiveness of trademark design requires that the concept or the meaning of the selected mark shall not be in direct correlation with the goods or services, or they should only maintain a small, indirect association. That is to say, fanciful marks, arbitrary marks and suggestive marks should be the first choices, while descriptive marks should be avoided. The distinctiveness of trademark design also requires that the mark should be identifiable and convertible. For example, the “aekson” mark has no intrinsic meaning, which is also called the fanciful mark. Such marks have high recognition and can not be easily confused with other logos. Also, such marks play a big role in extending the product line and category because it is easy to convert between categories.

 

If the mark is a common name or direct representation of the quality of goods, raw materials, function or purposes, it is hard to convert. Generally, few companies would choose “fruit” as a trademark for selling apples, watermelon and other fruit products. In addition, having significant features is the premise to obtaining trademark registration or protection. Therefore, significant trademark design is better for brand protection.

 

From the above analysis, we can see that a powerful corporate brand begins with a strong brand design, while brand design is based on trademark design. A trademark design should be significantly distinct from others, or else all great effort that goes into building a brand might end up benefitting other competitors or even be destroyed. Such cases can be found in China’s judicial practices.

 

In the trademark and unfair competition case over “Shangdong Silk,” the plaintiff, Shandong Silk Industrial Co., Ltd., applied for registration of the word mark “Shangdong Silk” in 1999, with the approved use in Class 25, covering clothing, shoes and headgear. The defendants, Juancheng Shangdong Silk Crafts Ltd. and Jining Lizhibang Textiles Co., Ltd., sold bedding products with the term “Shangdong Silk” marked in significant positions.

 

The plaintiff believed that the defendants violated its registered trademark and constituted unfair competition and requested that the defendants stop the production and sales of products suspected of infringement. It was also requested that the defendants be required to change their corporate names, cease using the “Shangdong Silk” mark and provide compensation for the economic loss of 50 million Yuan. The Jining Intermediate People’s Court of Shandong Province made the first instance judgment in favor of the plaintiff.

 

The two defendants appealed and the Shandong Higher People’s Court reversed the lower court’,s ruling and held that before the plaintiff registered the trademark in 1999, “Shangdong Silk” had long been the generic name of the folk handmade cotton textiles made in Shandong. The weaving skills of the “Shangdong Silk” textile were also listed amang the intangible cultural heritages by the State Council. Thus, the production and sales acts of the two defendants were proper use of the trademark and they did not constitute trademark infringement or unfair competition. The court then dismissed the plaintiff ’s claims.

 

In the above case, the corporate name of “Shangdong Silk” has been rated as a “China Time-honored Brand” and the “Shangdong Silk” trademark was named as a “Shandong Wellknown Trademark.” However, this is not a shield preventing others from using the mark. The core of the problem lies in the selection of the trademark: the plaintiff committed a big mistake in choosing a generic mark without distinct features as the company’s brand and before applying trademark registration.

 

It is worth noting that minimizing the use of a descriptive trademark does not mean that companies can not choose to use such trademarks. It only means that it is better to choose significantly distinct marks as major brand trademark or subbrand trademark. For example, a common or generic name of a product or technique used as a general term should not be used as a trademark. However, it is still necessary to apply for a registered trademark for the unique (specific) technology and product owned by the company, because sometimes specific technical names can play a positive role in “concept marketing” and is conducive for the company’s products to enter new markets and new areas. If the company must add the serial name or product code of certain product lines, it is necessary to apply for sub-trademark registration from the perspectives of market entry and risk control.

 

In the “Bamboo Salt” trademark case, shortly after LG launched bamboo salt toothpaste in China, a toothpaste factory in Shanghai marked the “XYZ” brand bamboo salt toothpaste on its own toothpaste products. LG held that its “Bamboo Salt” trademark had been registered in China and issued a lawyer’s letter to the toothpaste factory in Shanghai, asking it to stop infringement. The factory responded immediately and stopped using the words “bamboo salt.”

 

Currently, companies often stir up some concepts when launching new products, which is the so-called “concept marketing” technique. LG also took the advantage of the “concept marketing” technique and made “bamboo salt” as a selling point in China. Of course, LG might also be aware that law does not protect that which is purely a selling point or concept. But how could it make more effective use of the selling point? LG then took the weapon of trademark registration and gained the exclusive right. After LG Bamboo Salt Toothpaste was launched, there have been few other enterprises that manufactured or promoted the concept of “bamboo salt” toothpaste.

 

It is noteworthy that though “bamboo salt” is of positive significance for the promotion of the new products in new markets, the “bamboo salt” itself is the name of a raw material.

 

If another manufacturer produces toothpaste with “bamboo salt” as an ingredient and labels “bamboo salt” in its packaging, it would be difficult for LG to protect its trademark rights.

 

(Translated by Li Guanqun)