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Consultant opinion:
The importance of trademark protection in the activity of commercial companies |
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1.
General issues
In the context of the sustained
economic development in
our country, trade companies
have started to pay an ever
greater importance, besides
the formation and attraction
of a stable group of customers,
the development and improvement
of the provided products
and services, to the protection
of their activity.
This protection of activity
has known various forms,
commencing from the protection
of the procedures to manufacture
products and to deliver
services and includes also
the protection of the incorporeal
elements, among which the
trademark. Other similar
incorporeal elements are
the customers, the rights
to use the premises, the
firm, the intellectual and
industrial property rights,
the licenses etc.
In nowadays acceptance,
the trademark is considered
to be a distinctive sign,
which services for the differentiation
of products and services
of a trader from the products
and services of other traders.
The idea of differentiation
of products and services
by means of trademarks is
not a modern one, proofs
of its use having existed
ever since the Middle Ages.
Thus, it is in that period
that the trademark and the
brand were regulated for
the first time, regulations
which turned the trademark
into an institution with
the functions which were
conveyed up to nowadays.
(For example, the Acts of
Padova in 1236 or those
in Monza in 1331 provided
the obligation to mark the
products).
Presently, the trademark
has proved its importance
by the capacity to attract
and preserve the customers,
being established as an
essential element of customers'
growth in a company. In
time, the economic importance
of the trademark has enhanced
in direct relation with
the development of world
trade and international
trading. Numberless products
and services are sold these
days in the whole world
under the same trademark,
and "commercial notoriety"
has become a valuable asset
of modern companies. For
example, the most expensive
trademarks, estimated at
a value contained between
40 billion dollars and 4
billion dollars in the USA
are Marlboro, Coca-Cola
and Budweiser (Marlboro
was assessed at 39.9 billion
dollars, while Coca-Cola,
in 1986, when the firm celebrated
100 years of existence,
was assessed at 7 billion
dollars).
2. Functions of
the trademark
The capacity of the trademark
to be a distinctive sign,
used for the differentiation
of products and services
does not represent a purpose
in itself. In fact, the
differentiation of products
and services warrants their
origin and quality, pursues
to attract customers, organizes
the market as a result of
the interaction between
products and consumption,
between demand and supply,
makes commercials and provide
consumer's protection.
The value of the trademark
consists in the information
supplied to the customer
regarding the origin of
products, enabling buyers
to distinguish these as
well as protecting the producers
against the use of their
trademark by the rivals.
With the aid of the trademark,
the consumer reaches to
identify his/her favourite
products due to quality,
the trademark having become
for consumers a warranty
for a constant quality of
the product, which bears
that trademark.
The trademark has become
for the consumer a symbol
related to the reputation
of a product, and, by adequate
advertising, it has the
capacity to create in the
consumer "a conditioned
reflex", by detaching the
customized product and becoming
persuasive by itself. A
successful advertising confers
a potential of sale independent
from the quality and price
of the product to which
this is associated, the
trademark itself becoming
an autonomous element of
commercial success. (This
is the case of the Dodge
plant which was sold in
1924 at the amount of 146million
dollars, of which the trademark
represented more than half
of the total price, 74 million
dollars).
3. Effects and protection
of the trademark
The registration of the
trademark confers the holder
an exclusive right to the
trademark and the right
to sue any person which
in good faith or in ill
faith and in any form causes
a prejudice to the holder's
right.
The violation of rights
to a trademark represent
phenomena, which cause the
holders considerable prejudices
as a counterfeit trademark
does not have the part to
certify authenticity or
to warrant the quality which
the buyers are entitled
to claim. Such a trademark
causes the producer which
holds the trademark legally
losses at the sales of goods
and services, as well as
a possible loss of jobs.
(It was estimated that in
1982 losses of the companies
in the USA due to counterfeiting
amounted to 6-7 billion
dollars and the loss of
130.000 jobs).
To protect the trademarks,
all the systems of law have
set up a series of sanctions
for the violation of rights
to the trademark. In the
Romanian legal system, the
violation of the right to
the trademark incurs a civil
liability, the victim of
violation of the right to
trademark having the possibility
to turn its claims into
good account by means of
a criminal or civil lawsuit.
Counterfeiting and disloyal
competition are deemed to
be offences and incur criminal
liability.
The offence of counterfeiting
contains several actions
whereby the public is mislead
about the quality of products
or services to which a trademark
refers, by imitation or
reproduction thereof without
any right. Release of a
product, without any right,
bearing an identical or
similar trademark and which
prejudices the holder of
the registered mark is also
deemed to be an offence.
Counterfeiting is also deemed
to be the use of a sign
identical to the trademark,
without the consent of the
trademark's holder, for
products and services identical
to those for which the trademark
has been registered, as
well as the use of a sign
which, due to the identity
or similarity of products
or services to which the
sign is applied, would cause
a risk of confusion in the
public' s perception, also
including the risk of association
of the trademark to the
sign.
As far as disloyal competition
is concerned, this means
the use or release of products
bearing names of origin
or false indications, or
use of trade names or names
of trade or industrial organizations,
for the purpose to mislead
the beneficiaries.
As to the ever growing importance
of trademarks as well as
to the sanctions which can
be taken in case of a use
thereof without any right,
Ensight Management Consulting
recommends to all companies
to register their trademarks
in order to have the possibility
to turn into good account
the benefits thereof in
a legal manner, protecting
thus an important part of
their trade activity.
For such purpose Ensight
Management Consulting has
a team of experts available
for intellectual property
issues, which also contains
trademark matters. This
team is available to its
clients and provides a varied
range of customized solutions,
according to the requirements
and requests thereof, for
the purpose of protection
of trademarks and of the
other intellectual property
rights.
Attorney - at
- law Alexandru Popescu
Dan Mihai Law Office - legal
partner of Ensight Management
Consulting
The Law
Office declines any liability
to any natural/legal person
regarding any fact resulted
following the use of information
contained in this bulletin. |
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