Brand and trademark: what is the difference

Trade mark, trademark, brand — where the confusion lies in terminology

In Russia, only one term is legally established — «trade mark», it is stipulated in the fourth part of the Civil Code of the Russian Federation. Abroad, the word trademark is used, which is translated as «trade mark». Essentially, these are synonyms for the same phenomenon — marks registered for product individualization. The difference lies in status: a trade mark marked with the symbol ® has undergone state registration and has received legal protection. The symbol ™ is placed on a mark that has not yet been registered or has been registered in another jurisdiction — it does not provide legal protection in Russia, and is more of a claim to rights.

The brand does not figure into this pair of terms at all, because it is not an object of rights. You can register a name, a logo, a slogan, a color combination — separately. But a 'brand' as a whole — the impression, trust and expectations of the audience — does not exist in the Russian Patent Registry in any form.

Hierarchy of three levels: from a legal sign to perception in the consumer's mind

It is easier to see the difference not in definitions, but in the analysis of specific companies. A trademark is a legal wrapper, a trade mark is a marketing tool for a specific product, and a brand is what is formed in the consumer's mind based on the experience of interaction with the company as a whole.

Hence the practical conclusion: the lower level (trademark) is legally protected, the middle level (trade mark) is a commercial tool for a specific product, and the upper level (brand) is an intangible asset that exists only as long as the company and its activity exist.

Transfer of rights: why it is easy to sell a mark but a brand only together with the business

A trade mark can be transferred to a third party in two ways — by a contract of alienation (full transfer of rights) or by a licensing agreement (right to use for a term and on conditions). This is a standard transaction registered with Rospatent, taking from one to several months and not requiring the sale of the entire company. This is how franchises have worked for decades: the mark owner transfers the right to use it to hundreds of franchisees, remaining the sole owner.

With a brand, such a scheme does not work. A brand cannot be 'alienated' separately from the business, because it is not a complete legal object — it is a combination of reputation, recognizability, product quality, relationships with the audience, and the company's internal culture. A brand can only be sold together with the assets that created it: production, team, customer base, and business connections. That is why M&A deals, where a well-known brand is purchased, are structured as purchases of the entire company or a controlling stake in shares, rather than as the transfer of a single designation.

What cannot be patented in a brand at all

A part of a brand is legally protected through separate objects of intellectual property, and another part cannot be registered in principle, because it does not have a form that can be fixed as a legal object.

• It is possible to protect separately: name, logo, slogan, corporate colors and fonts, packaging design, domain name, patents on technologies.
• It is not possible to register as an object of rights: company reputation, level of audience trust, product quality as a feeling, management's business ethics, corporate culture, know-how and production secrets (they are protected by trade secret regime, not by patent).

This distinction explains why a competitor can copy a logo and still face legal claims, but cannot 'copy' reputation — it has to be earned again, over years.

One company — several trade marks under one brand

This is a common practice, especially in FMCG and portfolio holdings. Procter & Gamble releases dozens of trade marks under its corporate brand — Tide, Gillette, Pampers, each with its own trademark, target audience and positioning. Mars owns the brands Snickers, Whiskas, Orbit — consumers do not always know that these are from the same company, and this is part of the strategy: if the reputation of one brand suffers, the others will not be dragged down with it.

The reverse model — when the brand and trade mark practically coincide in market perception, as with Apple or Tesla. There is no portfolio of independent brands there, all the product range is released under a single name, and it is not possible to split the reputational risks.

When a trade mark becomes a brand

There is no formal legal threshold here — this is a matter of marketing practice, not law. It is common to rely on the measure of brand recall: if at least 20% of the target audience has a positive attitude toward the product and can remember it without prompts, the brand can be considered a brand. The threshold is conventional and depends on market competitiveness — in a narrow niche, B2B 20% brand recall among the target audience may be sufficient, while in the mass consumer market this is not enough for real impact on sales.

It is important to establish the logic: not every trademark reaches the level of a brand, but every brand must be registered as a trademark (service mark), otherwise there will be nothing legal to rely on when protecting it from copying. Without registration, even a strong reputation will remain without legal protection — a competitor will be able to use a similar name, and it will be almost impossible to prove infringement.