Is Age Really Just a Number?
“Depuis” (French for “since”), particularly when accompanied by a date, is a magic word for trademarks. It communicates many positive things to potential customers: history, experience and expertise and reliability. “Depuis”, followed by a specific date is used in more than 2,000 French and European trademarks. Of course, similar phenomena can be found in respect of “since” for English language trademarks, “seit” for German ones and so on, but here we focus on “depuis” as a good example. In this article we analyse why it is so commonly used and the circumstances under which it is particularly prevalent. We look at why communicated longevity can be so valuable and how this might impact how companies manage the precious intangible constituted by their portfolio of trademarks.
Depuis — a Word that Keeps Appearing
First a few basic statistics
By analysing the INPI database we estimated both the propensity of the use of the structure “depuis -date” by trademark class and the average date used. This is shown below graphically for selected trademark classes according to the NICE classification:
We can see there is quite a lot of variation in both the propensity to use the “depuis-date” structure and the date used and we can speculate on some of the reasons for this.
History, longevity and tradition
Trademark classes where quality may be associated with longevity and tradition (e.g. food, like “Paul Depuis 1889“, or drinks, like “Veuve Cliquot Depuis 1772”) tend to use dates more and earlier dates. Classes where customers may value more modernity and technology (e.g. vehicles, pharmaceuticals) use depuis less and use more recent dates.
Every trademark will have an implicit date since the name was used, but only some state this in the registered trademark. The age that is considered worth highlighting in a trademark varies by trademark class. 50 years is quite a long time for a clothing brand to have been in existence, but not for a cognac. Of course, it is also likely that the actual average age of the businesses will vary by class, irrespective of whether this is highlighted in the trademark.
It is interesting to note that drinks brands (Class 33 which excludes beers) uses the “depuis-date” structure less than food brands, but use earlier dates. This could be because they are trying to communicate slightly different things in their branding. For food, customers may see it as a positive sign of quality that the brand has been around for multiple decades. Drinks customers may like the tradition associated with a production which has been going on for more than 100 years.
Alternatives to a fixed date are sometimes used, but they are much less common. These include:
- “Depuis toujours”. This is the most commonly used alternative.
- “Depuis x generations”. This suggests both longevity and a family business. It may suggest more traditional values and the handing down of expertise from parent to child.
- Depuis x years”- This is sometimes used, but has the weakness that once registered it will be fixed. Over time start it will therefore tend to understate the age of the business. If the phrase “L’expert en emballage depuis + de 30 ans” is registered this will remain true. But after 20 years, it will materially understate the actual longevity of the business.
There are also cases where the foundation date of the company is stated without using the word “depuis”. Or “depuis-date” may appear in a registered logo (“marque figurative”) without appearing in the registered trademark name.
The Tip of the Iceberg?
It is important to note that many brands highlight the period they have been around in their promotional material even when it is not included in the actual trademark. Claims of a certain longevity which are NOT reflected in the trademark are not included in the INPI database. It is therefore less easy to directly analyse the propensity to make such claims.
We estimate that maybe only 1/3 of French companies prominently making claims to be between 100 and 150 years old include it in their registered trademark. This excludes a material number of companies which claim history but do not have a registered trademark at all. Given the value of a “longevity trademark”, it could be argued that such companies are missing an opportunity to formally record their history via a trademark.
Why Depuis?
Using “depuis” can convey various messages to potential customers which can be of value:
- Longevity. Simple longevity may be seen as desirable per se for reasons of tradition and nostalgia. This could be particularly relevant for products with a luxury goods type positioning (e.g. high quality alcohols).
- Reliability. If a brand has existed for many years, they are more likely to have good quality standards and not let their clients down, been mismanaged or had other reputational issues. For example, a food manufacturer or restaurant which has been going for 50 years, probably has not had regular problems with food poisoning.
- Quality. Being around a long time will allow expertise to be built up and will be associated with quality.
What do you need to be able to claim origin to a certain date?
The date since which origin can be claimed via the use of the formula “depuis…” is not necessarily clearly defined. Particularly for older dates, it is unlikely that the “depuis date” is the date at which the trademark was first registered. Indeed, many older dates pre-date the current trademark legislation. Possibly the most famous early example is “Kronenbourg 1664” beer, which is so well known in France it is usually abbreviated just to the century (“seize”).
It appears to be enough to be able to show a continuous business activity over the time period, but sometimes this history is quite tenuous or anecdotal. In general, a spurious claim to longevity could be objected to at least the following two steps:
- At the original registration, the trademark registry could object to the description as misleading or unfounded.
- A legal challenge could be made against the owner of the trademark as being misleading.
An interesting example which shows that practice is quite loosely defined in this area is the following. Bagelstein, the chain of franchise Bagel restaurants, uses the trademark “Beaux et Frères, Depuis 1789″, despite the fact they were founded in 2011. The founder has said in interviews that the use of 1789 is obviously a joke. “It is so silly that it HAS to be a joke but 1789 is the date of the French Revolution meaning freedom”.
The “obvious joke” defence seems a bit weak, especially since Bagelstein operates internationally, where it is unlikely that all customers would instantly recognise the date for the French revolution and that this is a joke. On the contrary, some customers may believe that this is a long standing business which has really been making bagels for over 200 years. Furthermore, a genuinely old bakery, which had been making bagels since the 1950s, might feel that its legacy brand value is diluted by having a competitor claim a much older origin date. Most likely, Bagelstein simply has not faced a legal challenge in this regard. It is worth noting also that another competitor franchise chain of Bagel restaurants, “Bagel Corner”, has “Depuis Toujours” in its trademark despite the fact it was founded in 2010!
How Valuable is a Date?
The fact that the formula “depuis-date” is used so often clearly shows that it is considered to be of value. Of course, it is hard to accurately assess by how much, but we probably could conclude that:
- For brands where history and tradition make up an important part of the brand message, the ability to quote a date associated with this could constitute a material part of the brand value.
- This is more important for some classes of trademark than others.
- This value is — in general — the higher the older the date is.
How can TradeYourMark® help?
TradeYourMark’s core business is helping clients buy and sell trademarks. As such, trademarks featuring “depuis”, “since” or other equivalent words are naturally part of our business.
- For buyers: we often help acquirers looking for historic brands to use as the basis of business strategies. An interesting option can be to acquire a trademark which has an explicitly stated age via the use of “depuis” or an equivalent. It can be acquired and exploited, building on the acquired trademark’s legacy. We can help clients look for and negotiate to buy such a trademark.
- For sellers: trademarks which explicitly state an age or to which it can be justified to add such a label potentially constitute valuable immaterial assets which can be monetised.
