Trademarks – What Makes BMW, BMW?
Your Reputation Is At Stake
Trademark law is as complex as it is interesting and like other areas of intellectual property, is chiefly concerned with protecting expressions of ideas that are proprietary to a particular individual or company. However, unlike copyrights, which protect a given creative work or patents, which protect novel inventions, trademarks are unique in that they are focused on protecting the underlying idea that the mark represents.
Psychologists and branding experts have long since recognized the experiential quality that a brand name and logo can evoke in a viewer and its capacity to influence a buyer in the product he selects. A BMW symbol on the hood of a car renders that car valuable (at least to a certain extent) specifically because the symbol is perceived to be an indicator of value. Whether or not BMWs are actually “better” than KIAs, which cost half as much does not really matter – what counts is that we think they are better and are willing to pay more for this perceived advantage.
If you find yourself doubting this proposition, imagine a car dealer presented you with two identical cars in make, model, and year and told you that he will gift you either one. The only difference between these cars is that the first is branded with a BMW symbol while the other, a KIA symbol. Which one would you choose?
What’s Fair is Fair
The law, in its infinite wisdom, also appreciates the cognitive effect brand marks have on consumers and through the legal device of a trademark, protects an individual’s mark from being inappropriately used by another.
Trademarks are precisely as the word instructs – marks that signify the trade of a company. Trademarks that are misappropriated by competitors commit the dual harm of deceiving the consumer as to the source of the good and profit from the goodwill earned by the real owner of the trademark.
Imagine a scenario in which a new car company named Beta Maxwell chooses the BMW mark as its company logo. Naturally, Beta Maxwell puts the logo on the hood and rear bumper of all of its company cars. Beta Maxwell initiates an aggressive marketing campaign and while it never claims to have any association with BMW, it uses the BMW logo on all of its marketing materials while its own name, Beta Maxwell, is noticeably absent. Customers are flocking to its stores and in only two months, Beta Maxwell has sold out its entire stock of cars. Business is booming and Beta Maxwell is a success. What if anything is wrong with this?
Astute readers will likely realize that many of Beta Maxwell’s customers purchased its cars due to the erroneous belief (at least at some point during the purchasing process) that these cars were made by BMW and not Beta Maxwell. Beta Maxwell is selling not only a physical car but also an association between the car and the BMW brand. Here, it is profiting from a reputation that it did not create at the expense of the company whose name has been high jacked. Ultimately, it is precisely this sort of theft of brand identity that trademark law is meant to prevent.
