The trademark is not a brand, just as the brand is not a trademark.
In the brand concept, the brand has a vital role, being the legal basis from which to build the brand. The defining meaning is that of certification of the unique, original quality, different from the similar ones in the area of activity of a product, service, people, sound, smell, object, etc. service, registered with the specialized institutions of the state. One of the most important functions of the trademark is to legally certify the difference between the products and to confer the quality of being identifiable in relation to the origin and the manufacturer. An important element in the economy of brand value is that given the degree of authenticity. Through the quality of uniqueness, the brand receives the commercial value necessary for transactions. An exhaustive definition is not possible. In the USA (USPatent and Trademark Office) for example, a smell, a taste, a sound, a shape, a color, a social, cultural, sports, political, religious, etc. concept can be registered as a trademark. It is therefore useful to start by defining the trademark term of the principle that any graphic, semantic, or any other concept that is unique, original, distinctive and identifiable (per through the 5 basic senses) is likely to become a brand. A first conclusion that we can directly draw from the above definition is that in order to become a trademark it is necessary to register it in accordance with their law. The definition of signs as they appear in their law is: A TRADEMARK may be any sign capable of graphic representation, such as: words, including names of persons, drawings, letters, figures, figurative elements, three-dimensional shapes and, in particular, the shape of the product or its packaging, colors, color combinations, hologram, audible signals and any combination thereof, provided that the signs enable a company's goods or services to be distinguished from those of other enterprises. From this text of the law or remark must be made immediately. This definition introduces (unfortunately) an important restriction, given the use of the term "enterprise". According to the Explanatory Dictionary of the Romanian Language, the definition of the term “enterprise” is: ENTERPRISE, enterprises, s.f.1. Economic unit of production, provision of services or trade. The confirmation of my statement above is strengthened in the very text of the law by the following mention related to the term enterprise: “Art. 3. - For the purposes of this law, the terms and expressions below are defined as follows: r) enterprise - any entity involved in an economic activity, regardless of its legal nature or its method of financing. Since semantically, the first function assigned to the trademark by the regulations of the bodies in law was to identify the commercial origin of the product, it was long considered appropriate to adopt this term. The new law, surprisingly, does not bring anything new in this regard, theoretically eliminating (implicitly) those social, cultural, sports, political, religious or even private individuals directly interested in protecting a trademark, but who do not carry out commercial activities that implies the use of the trademark thus registered and which can thus be discriminated against by the very letter of the law - provided that these signs make it possible to distinguish the goods or services of one undertaking from those of other undertakings. The implicit association of the term trademark with the obligation of a commercial activity is a serious and unjust error. The trademark by the very nature of its definition has a character of non-limiting distinctiveness at the level of human activities and actions. Not all brands are trademarks. Any person directly interested in the protection of a single concept, of any nature, which limits the right of use by third parties, without the consent of the legal owner of the trademark, may request the registration of a trademark without this being the premises of a commercial activity. Another definition of the brand much closer to its true meaning can be found in the Explanatory Dictionary of the Romanian Language: BRAND, marks, s.f. 1. Distinctive sign applied to an object, a product, an animal, etc. to distinguish him from others, to recognize him, etc. ♦ Type, model, inscription (indicating the source) of manufacture. Car brand. ■ Loc. adj. Brand = high quality. ♦ (Teacher) Coat of arms; coat of arms, emblem. ■ Loc. adj. (about people) of note; marking, distinguished. … 4. Fig. Distinctive sign, specific feature, characteristic feature; particularity, which gives a character of uniqueness - From ngr. brand, fr. brand. Cf. germ. Marke. Therefore, an essential and defining characteristic of the brand is that it produces differentiation, ie it is distinctive. This is the defining character of the brand. Trademark law should have focused only on this essential attribute of the trademark - distinctiveness. I will repeat this axiom several times in the following lines:Without registration, the trademark does not exist!