It makes sense that a property rights owner has the duty and responsibility to protect and preserve its right and, if applicable, enforce it, no matter the nature of the property (eg, a house, car, patent, trademark, etc). In the course of protection and enforcement, the owner relies on legal provisions, whereas in the course of promotion it relies on commercial actions, including advertising.
Many IP offices make efforts to deliver IP rights quickly. The entire IP community, at least in Europe and the US, has been contaminated with the virus of “getting everything done with a click” and as a consequence patent and trademark registers are cluttered with thousands of rights whose quality is very low. The level of attention devoted by the owner to each individual right is therefore constantly diluted.
Trademarks are facing the danger of losing their essence, that is, identification of the origin of the goods and services. The result could be a “divorce” of the brand from the trademark.
I attended the Marques conference in Spain in September 2016 and its title was “Brands versus trademarks; trademarks versus brands”. In a presentation, Ricardo Perez, a specialist in brand creation (and not a trademark attorney), delivered a speech about meaningful brands. Throughout his presentation there was no intention whatsoever to link brands, ie, the commercial side of the trademark, with the company, which is the origin of the goods or services.
"there is a risk that the essential function of the trademark as a guarantee of origin will be diluted in the future."
The speech by Anthony Douglas from Specsavers delivered the same message. While listening to the speakers, I suddenly realised that most advertising campaigns of recent years are built on the idea that was conveyed by these two speakers in their presentations: the public is “bombarded” with messages that try to evoke an emotion and this emotion will push them to buy the respective product.
The risk of separation
The idea of associating a brand exclusively with an emotion and reducing the time associated with selecting a product from other similar goods means in fact dissociating the brand from the trademark. In the past, trademarks went together with brands, meaning different things for different people (trademarks for the legal side and brands for the commercial), but they were essentially going side by side.
If the tendency is to separate trademarks from brands, this means there is a risk that the essential function of the trademark as a guarantee of origin will be diluted in the future. This will lead to confusion for consumers in maintaining the same level of expectations when exposed to a mark. In a world of constant change, consumers do need some elements of stability.
Pushing consumers to buy objects and services based exclusively on instinctive emotions—as the two abovementioned presentations suggested and as we have noted from advertisements—is in my opinion a significant step backwards for trademark owners and consumers.
Fortunately this tendency does not arise in all category of trademarks. For example pharmaceutical trademarks, while significantly changing the philosophy of name creation over the past few decades, have adhered to their basic duty of identifying the origin of the goods.
To conclude, I believe that trademark owners should take more seriously their responsibility to protect not only their portfolio, but the notion of the trademark as a guarantee of origin. I am convinced that they can promote their brands with innovative approaches while maintaining an anchor of stability in the essential function of the trademark corresponding to the brand: to differentiate the goods or services of a company from those of another.
Raluca Vasilescu is a partner at Cabinet M Oproiu. She can be contacted at: firstname.lastname@example.org
Raluca Vasilescu, Cabinet M Oproiu, Specsavers, trademarks, brands, emotions, pharmaceutical, origin, innovation,