Marketing and IPR

Introduction

It often happens that a company’s trademark is confused with its brand and on top of that, the brand name or trade name. A trade name is a name under which a company pursues its business and needs to be distinguished from the entity’s registered or legal name. Many countries require registering a trade name or business name in a special register. A trade name often is designated by the term “doing business as,” “trading as,” or “operating as” to make this distinction from the legal name. A company’s brand on the other hand only exists intangibly, in the minds of the public. When used in a marketing context, the brand has two primary goals: first, to represent the company in public to create maximum awareness and recognition for the organization and its business proposition. The term “brand” comes from the time when shepherds used a branding iron to burn scars on their cattle to distinguish it from other shepherds’ animals. After the Industrial Revolution, when items were being sold all over the world, manufacturers realised they needed to distinguish their products from those of competitors. This resulted in the creation of brand names and, eventually, trademark protection for brands. The value of brands in today’s corporate environment is only increasing due to globalisation. Companies are prepared to invest significant sums of money to increase brand recognition, despite the fact that doing so can be expensive. The expenses associated with trademark registration pale in comparison to this.

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This is done by the absolute basics: the brand name (often the trade name), the claim (which often reflects the company’s mission statement) and visually by the logo. Second, the brand is a basket that offers the promise to meet clients’ expectations for a certain quality of a product or service. For a marketer, a brand is what represents the values of a company and aims to create awareness and trust. This is created through personal contact with the client in connection with the use of services or products, contact with sales or client support, or through brand communication (marketing).

A service mark is essentially the same as a trademark but identifies the origin of services rather than commodities, allowing one party to differentiate its goods from those of others. The origin function is the capacity to distinguish between products and services coming from various sources. The quality function of a trademark relates to the assurance of particular positive qualities and subjective values, while the communication function refers to the dissemination of the trademark image to and among customers through advertising.

The L’Oreal/Bellure case is a fantastic example of how scholars and courts generally embrace these principles. “These functions include not only the essential function of the trademark, which is to guarantee to consumers the origin of the goods or services, but also its other functions, in particular that of guaranteeing the quality of the goods or services in question, as well as those of communication investment or advertising,” it was stated in the case. Similar brand roles include identity, image, personality, character, culture, essence, and reputation in addition. Intellectual property must be created with a significant financial outlay, and it must also be protected. All of this must be economically justified by a demonstrable value. In this context, “brand equity” refers to the monetary value of a strong, well-recognized brand. Experience has shown that well-known brands are far simpler to market than lesser-known ones. Potential clients’ decision-making is made easier by brand familiarity because a company’s quality guarantee makes purchasing less complicated. A strong brand not only makes marketing campaigns more effective, but it also gives the business the ability to protect margins and maybe expand the brand to other services or product lines. Even while brand equity is an intangible component of a company’s assets, it represents a growing portion of that value that can be made money from. The majority of businesses are worth more than the whole of their physical assets.

New commercial names, logos, domain names, product names, slogans, flyers, white papers, brochures, newsletters, landing pages or website designs are some examples which are part of the marketing communication and strategy. Whether they are protected or not, in the particular case, by intellectual property rights will depend on whether or not they fulfill the respective requirements for protection. However, at least in theory, they all can be protected. The extension and the way of protection will differ according to the kind of asset in question. A trademark is a symbol (word or otherwise) used to distinguish the goods or services of one source from those of others. New indicators being introduced in the communication are frequently seen in marketing advertisements. These signs are typically sub-brands that, with or without the company’s primary brand, appear as a fresh form of advertising to introduce a new good or service to the target market. They should be registered as trademarks since they are distinctive indications that adhere to the criterion of novelty for marks. The same concept should be applied to advertising slogans. In this sense, before trying to register a slogan as a trademark, it has to be ascertained whether there is a possibility of protection.

Industrial designs safeguard a product’s decorative or aesthetically pleasing features, such as its colour, shape, or lines. Three-dimensional or two-dimensional characteristics may be used in industrial designs. In this regard, inventive designs employed in marketing campaigns should be protected by industrial design, provided that they are novel and original. The copyright is the final pertinent intellectual property issue that needs to be taken into account. A copyright is an exclusive legal privilege that safeguards specific kinds of original works. White papers and newsletters are examples of what falls under this intellectual property right. However, in some situations, there may be a conflict between a copyright and an industrial design, which is not necessarily a bad thing because they complement one another. Landing pages and website designs can also be protected by copyright.

Conclusion

Seen through the eyes of a marketer: It’s clear that marketing and intellectual property is closely linked and can’t be separated. Marketing consists of a brand and brand name and image which has to be intertwined with IP Laws in order for it to be successful. In terms of intellectual property rights, marketing campaigns have to be carefully delineated. In order to avoid troubles in the future it should be adopted a preventive legal strategy. A brand can be referred to as the representative elements of a company’s corporate image, which builds and develops over time by creating trust, while a trademark provides legal protection for the brand. As companies don’t want to lose the capital investment they made in creating their brand, they should utilize IP protection. Trademarks do not need to be registered, but there are certain facilities granted to the owner of a registered trademark as opposed to the owner of an unregistered trademark who often has difficulties to prove the existence and extent of its right.

Author: Tanya Saraswat, in case of any queries please contact/write back to us at support@ipandlegalfilings.com or IP & Legal Filing.

References

• https://www.researchgate.net/publication/228740384_Intellectual_Property_Strategy_and_Business_Strategy_Connections_through_Innovation_Strategy
• https://www.oraclinical.com/resource/intellectual-property-within-the-context-of-establishing-and-protecting-market-share/