Branding Neo India in Trademark Law

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Developing a strong trademark is crucial to protecting the value of the brand. Examples of well-known trademarks include NIKE, CHANEL and COKE. The name of your product or service doesn’t have to be famous to be protected by trademark law. But, not every name is protected as a trademark. In selecting a trademark, resist the temptation to pick a mark that is generic or describes the goods or services. Generic names cannot be protected and it is difficult, if not impossible, to protect a mark that is descriptive. Trademarks are subject to varying degrees of protection. The stronger the mark, the greater protection it will receive.

Brand protection and management in India is a new design. As more and more companies and individuals have started using information and communication technology (ICT), brand protection and management in India has become cardinal. Brand protection and enforcement is generally managed by the intellectual property (IP) laws of India, especially Trademarks law of India.

Recently ICANN has initiated the procedure to allot new GTLDs. The process is still on and objection and dispute resolution for ICANN’s new GTLDs registrations can still be undertaken by individuals and companies. There is a dire need to have an effective brand enforcement policy in India on the part of Indian entrepreneurs and brand stakeholders. Of late trademark, goodwill and brand protection has become an essential part of corporate strategy. Individuals and organizations are exploring both legal and non legal methods to protect their trademarks, brands and goodwill. Further, information and communication technology (ICT) has raised novel online brand and reputation protection challenges across the globe, including India.
A congenial and trenchant brand enforcement policy is needed in India to safeguard the trademarks, brands and goodwill of Indian individuals and companies. This policy must adopt sound and legally sustainable methods alone to protect brands of their owners. For instance, online brand and reputation protection has got nasty in the recent times. Brand owners are using methods that are not legal and for protecting their brands they themselves are violating the laws of various jurisdictions.

The business world has moved from using trademarks—simple symbols identifying products—to brands—rich symbols that feed business strategy. At the same time, networked and empowered consumers are using brands, brand language, and branding strategies to make decisions about what they purchase, express preferences about how corporations conduct their business, and call for changes in corporate practices. These changes are the future of commerce. But trademark law has not kept pace with either that because brands are governed by this body of law, as the full realization of brands as information resources is hindered. Current trademark law is blinkered and confused, and consequently fails to manage all the interests at stake in the modern business environment. This failure flows from a core misunderstanding: trademark law has not grasped that it is managing brands, not trademarks.

Trademark law’s view of the consumer is paradoxical if not disingenuous. Mired in the world of the fully rational consumer, trademark law claims that trademarks are information resources for the consumer to use as part of the purchasing process. Regardless, when it comes to issues of infringement and protecting the consumer, this highly rational consumer morphs into a dullard who must not be asked to use any extra thought to discern what a mark may signify.

As Professor Graeme W. Austin offers,

Trademark law often seems to be premised on the idea that consumers are mesmerized by brands and are incapable of very much independent thought. The law assumes that the ordinarily prudent consumer unthinkingly accepts the messages trademark proprietors seek to enforce through their branding strategies.”

In other words, when the law abandons the rational consumer model, it inserts a view that is not only suspects but rejects what brand literature acknowledges: consumers are rather savvy about brands, to the point where they take brands and imbue them with personal meanings. As a result, those who wish to use a mark with a good degree of certainty face great uncertainty regarding whether a given use is permitted. At the individual level, brands become part of how someone creates who they are and represents that self to the world.

It is important to note the essential distinction between a trade mark and a brand. The former is the tangible item of intellectual property – the logo, name, design, or image – on which the brand rests. But brands also incorporate intangibles such as identity, associations, and personality. Distinct from a company name or maker’s mark, the brand name may be defined by several attributes: it is invented specifically as a product name, rather than comprising a company or a family name; it is a non-descriptive word-based trade mark, always succinct and often consisting of a single word; and it is abstract in form, usually characterized by being either a newly coined word – such as TABLOID, BRASSO– or an existing word used out of context – LIFEBUOY, MARMITE.

The emergence of the brand name was a highly significant stage in the sophistication of branding. It constituted not only a separation of corporate and product brands, but also a move from names based on terms of provenance or description to invented or abstract brands. As an item of deliberate construction, the brand name could be imbued with evocations, associations, or references – although, as this article will outline, it was limited in this respect by trade mark registration conditions. With this (relative) freedom to innovate, the adoption of the brand name foreshadowed modern branding and its incorporation. In other words, brand value as a term embraces all the proprietary intellectual property rights encompassed by the brand. Thus for the purposes of evaluation a brand has to be understood as an ‘active trade mark’; a trade mark actually used in relation to goods or services and which has, through use, acquired associations and value.

Why do people purchase a Coke instead of Pepsi? Fragment of the reason is that Coke is a different cola than Pepsi. But part of the reason comes from Coke’s label with the words “Coca-Cola” brimming across a red field in white cursive script or Coke’s iconic glass bottle. Coke evokes a sense of being All- American, Classic, and the perfect refreshing drink whether it is the Fourth of July or Christmas. A sip of Coke means imbibing an entire culture. Pepsi, on the other hand, embraces newness. Its label and logo change often. It claims to be the new generation’s drink. Drinking Pepsi is an alliance with motion, action, and youth. Coke and Pepsi are trademarks, but they are also brands. Brands have many functions. One function maps well to trademark law: providing information regarding a product that helps a consumer make a purchase. Trademark law recognizes only that function. Brand scholarship and practice, however, shows that brands can do much more than that one thing.

Companies use brands to connect with consumers and provide them with stories and images related to personality, patriotism, self-worth, the environment, sustainability, and more so that consumers are purchasing a brand image rather than a product. Successful branding can result in consumers purchasing goods without considering the price or quality of a good. Brands are levers that allow businesses to compete on non-price factors and product differentiate so that a commodity, such as soda, becomes a branded good, such as Coke, which will have higher margins compared to others in its market space. Once a consumer has a connection with a brand, the company can offer more products based on that brand. Trademark law relies on the singular idea that trademarks are about economic efficiency. From this perspective, trademarks enhance the economic efficiency of the marketplace by “lessening consumer search costs by making products and producers easier to identify in the marketplace, and encouraging producers to invest in quality by ensuring that they, and not their competitors, reap the reputation-related rewards of that investment.”
In this view the mark becomes a sign of consistent source and quality. This approach presents a paradox. “Consumer protection remains the mainstay of trademark doctrine,” but it is producers who have the right to sue others for uses of a mark that might confuse and thus harm consumers.

Trademark law has mistakenly seen trademarks as equivalent to brands and how brands are far more complex than trademarks. Trademarks and brands are not the same. Historical work identifies a range of practices for marking goods, including branding, as examples of or precursors to the way in which modern trademark functions. In early eras brands were burned or carved marks indicating ownership and/or slave or criminal status. Although many different ancient and medieval civilizations—from the Indus river valley to China to several Mediterranean cultures to Nigeria to the Arab Empire to medieval England—used brands and a variety of other marks for utilitarian purposes such as to indicate ownership and facilitate commerce, none of those uses corresponds to modern brands. Using marks for the “utilitarian provision of information regarding origin and quality in order to reduce risk and uncertainty” is only a part of what brands encompass. Brands have “more complex characteristics which are related to image building and include status/power, inherent value and finally, the development of brand personality.”

It is only around the late 19th century that one sees the birth of modern brands where a private mark provides information regarding source and quality and simultaneously has image components regarding power, value, and personality. And here the problem of trademarks and brands returns. The birth of modern trademark law coincides with the birth of modern brands. Yet, modern trademark theory has focused primarily on the commercial information side of brands functions and ignored or claimed to reject the other components of brands. This approach captures one, albeit important, role a brand plays but fails to account for the multi-faceted nature of brands.

Many companies encourage consumers to see brands as having a personality and to accept the idea that buying the branded good connects the consumer to the brand in deep, personal way.
As Prahalad and Ramaswamy argue:
Unless we make a shift from a firm-centric to a co-creation perspective on value creation, co-extraction of economic value by informed, connected, empowered, and active communities of consumers on the one hand and cost pressures wrought by increased competition, competitive discontinuities, and commoditization on the other will only make it harder for companies to develop a sustainable competitive advantage. The future belongs to those that can successfully co-create unique experiences with customers. In other words, decentralized, two-way information flow is a key part of co-creation of value.

A brand theory of trademark incorporates the way in which consumers and communities interact with a brand and explicitly takes a co-creation view of brands. In this view, brands are two-way, rather than one-way, information conduits. This approach abandons the idea that a brand or trademark is static. No matter what a company wishes to be the meaning of a brand, consumers and communities will interact with brands that are part of markets. Of great importance to a theory addressing trademarks is the way in which brands have become agents for social change and ways they affect market behaviours. In some cases, non corporate practices can provide useful information to companies, as well as other consumers, about the brand and its related product and company. In other cases, non corporate practices can help a company understand whether its view of the brand’s meaning fits its audience’s perception.

A strategy that either responds to or incorporates consumers and communities views or that engages in social responsibility could be a way to co-opt critics, a sham, or a public relations move. That perspective, however, misses the competitive strategy point:

The mutual dependence of corporations and society implies that both business decisions and social policies must follow the principle of shared value. That is, choices must benefit both sides. If either a business or a society pursues policies that benefit its interests at the expense of the other, it will find itself on a dangerous path. A temporary gain to one will undermine the long-term prosperity of both. A brand’s viability also operates under this type of mutual dependence.

A healthy, open view of brands with attentive and engaged consumers and communities can contribute to a company’s value. Furthermore, as the Harley-Davidson and other examples show, it is precisely this symbiotic relationship that mitigates the ability of a company to take on unauthentic postures; false or thin commitments to a cause or attempts to jump on the latest trend are quickly identified and denounced.

In short, a brand theory of trademark rejects purely centralized control as a losing strategy and shows that companies are more likely to enhance brand value by paying attention to both positive and negative consumer and community interactions with a brand rather than trying to snuff them out.

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