Good vs Bad Trade Marks: What Beer Brands Teach Us About Distinctiveness

Most brand owners are all too aware of the importance of trade marks, but are often unaware that what trade mark you choose matters too; a distinctive trade mark could be key to your brand’s success.

It’s one thing to have a name trademarked, but if it’s a name that could sink into obscurity in a crowded market, it might be worth checking whether it is more descriptive than distinctive before filing.

What beer brand trade marks demonstrate about distinctiveness

When Tom was in the US recently, he brought back some cans from Tree House Brewing. Those who know will know – these are some of the best-rated beers in the world.

Their flagship beer, Julius, is top-rated, and is also an example of a ‘good’, distinctive trade mark. Protectable, and fiercely protected.

The second can that Tom brought back for us was Haze, another fantastic beer. However, Tree House will struggle with protecting this name as it describes a feature of the product, its style. It is a ‘hazy’ New England IPA, and beer lovers will know that this is not the only hazy IPA on the market.

Savvy brewers recognise the importance of recognisable beer names and the commercial value in a core range. A well-rated beer will have consumers searching it out by name.
This isn’t just applicable to beer, of course! Brands need to think carefully when committing to a trade name; is it protectable and clear to use?

How other brands can utilise distinctiveness in their trade marks

Ben recently introduced his family to “Birriaramen” – a mash-up of rich birria consommé and beef and ramen noodles. “Birriaramen” is a fantastic name for the dish itself and is now being used by a range of restaurants. It immediately tells you exactly what you’re getting: a fusion of birria and ramen. It does what it says on the tin.

And that’s precisely why it would be a terrible trade mark.

Descriptive vs distinctive trade marks

Under trade mark law, a word that directly describes the goods or services is considered descriptive and cannot be registered. If you tried to register “Birriaramen,” the UKIPO would rightly reject it, because under UKIPO trade mark rules, other restaurants should be free to use a term that describes their own birria-ramen fusion without fear of infringement. No one can monopolise it for this reason.

Descriptive: Weak IP
If your name tells people exactly what the product is (Birriaramen), your brand protection is weak.

Fanciful: Strong IP
If your name forces people to ask what the product is, your brand protection is strong.

Now that we’ve laid out the difference between descriptive and distinctive trade marks, we’ll discuss an example that clearly illustrates the success of using a distinctive trade mark.

Why the Cronut trade mark works

Dominique Ansel didn’t call his creation a “Croissant Doughnut Hybrid” or a “Doughnut-stuffed Croissant.”

He created the word “Cronut.”

“Cronut” is a fanciful or arbitrary term. It didn’t exist in the dictionary before he invented it. Because it is inherently distinctive and doesn’t describe the final product – you need to be told what a Cronut is, and as a result, it serves as a perfect badge of origin. He registered it as a trademark, giving him a monopoly over that specific name. It strikes the perfect balance of distinctive originality and giving a hint of what the product is.

Why you need an expert

From “Julius” to “Cronut,” the lesson is clear; distinctive names protect your brand, descriptive ones just blend into the crowd. With the right advice and support, trade marking your brand protects your IP and helps secure all the hard work you put into your business from a legal standpoint.

At Asenda Law, we discuss these queries a lot with would-be filers. It’s worth keeping in mind when coming up with that valuable business ingredient of your chosen brand. It may seem more of a struggle to market early doors, but in our experience, it will always be worth it.

Whether you’re in need of trade mark advice, registration, or enforcement, we’ve got the expertise to help. Get in touch today.