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The Importance of Trademark and Its Place Within the Commerce Field
Trademarks have been there since the ancient of times and before all the technology has been established, even before al; the creation of shops and stores. When people used to trade goods through craftsmen; their creativity was so undrafted that they used unique and different ways to trademark their goods for example through signatures or signs to mark them. Trademarks took up its very significant and important role with the bringing of industrialization and since then have established their key factor presence within trade and economic flourishing. This paper is going to interpret and explain in depth the importance of trademark and how it came to take its place within the commerce field.
In order to define a trademark, one needs to look at the role it plays and function. “A trademark is any sign that individualizes the goods of a given enterprise and distinguishes them from the goods of its competitors”. This definition seemed to fit trademark as the author saw that it sheds light on both aspects of the role and function of the trademark, and that it is a must to look at them differently and independently, as they are so. For a trademark to exist and individualize a product, it must indicate the source of the product. That refers to the origin of it or the geographical location, as the name of the manufacturer or the traders are often irrelevant and unknown to the consumer. The mention of the origin is not particularly for the trademark to gain any authenticity, but rather for the consumer to know that this product or trademark is trust worthy.
The growth and expansion of the market-oriented economy alongside with the growth of industrialization, it opened up a lane for competition between manufacturers and trade markets, for the sole purpose of offering goods (of the same kind) however, with different characteristics or properties. That gives the consumer the chance to pick between their own likings. They usually differ in properties like quality, price, etc. The fact that products must and are named is already an indication of a trademark being there.
Trademarks also need to exist so that they can be a medium of communication with the consumer, through marketing and advertising their products, which leads to them selling it. Organizations and business also require the essential need of trade marks in order to ‘individualize their products’. Howe do trademarks serve the economy? Well, they do that by ‘serving their owners’ through the advertising and selling of foods, which all leads to rationalizing ‘the commercialization of the goods’.
All of that aids in offering a variety of choices for the consumer in order for them to be able to pick out their products. Trademarks often motivate and inspire their owners to keep maintaining and improving the product’s quality. And that takes place for the sake of maintaining and meeting the consumers’ expectations of the product. Therefore, trademarks are a way of making the consumer rely and come back to the product.
Many approaches have been developed historically, for instance on the ‘basis of use or registration’, and most often their combined together. For example, The Paris Convention for the Protection of Industrial Property of March 20, 1893 has placed contracting countries under the obligation to come forward for a trademark register. However, use does play an important role as within countries that have protection on use, registration does not place you as a priority to be trademarked first, but rather upon the first user. This approach has been chosen by USA, Indonesia, the Philippines and all countries with law on the traditional British Model. Whereas, there are countries that have no trademark register at all.
Other than the origin function and distinguishing function mentioned above, there are a lot more functions for the existence of trademark. For instance, there is the quality function which indicates that it helps consumers rely on the product due to its quality. There is the advertising function, which states that the trademark is a way of communicating with the customers through marketing and advertising. And lastly, the trademark has the function of being the products’ reputation, allowing the owner to protect it, license or franchise it.
Trademarks should and must be legally protected, or competitors might use the same sign for the same or even just similar products, which might confound the consumer and puzzle them into not knowing which product it is that they want.
That act of confusion and bafflement might end up with the consumer buying the wrong product and holding their intended organization responsible for it not meeting their usual standards. And once the consumer is aware of the fact that they bought the wrong product instead of the genuine one, they won’t be able to take any legal action towards them. That is what places importance on trademarks being unique and different, so that it prevents genuine organizations form being faulty accused and prevents the consumer from accidently buying their undesired products. In this comes the ‘exclusive right of the proprietor of the trademark’ which allows him to protect his trademark and prevent any competition from admitting to the same trademark for it to even be similar.
There is also a huge need for signs, so that consumers can distinguish the products, especially on products like cars, or insurance companies, etc. These signs are referred to as service marks and they fill the same role and function of a trademark, for instance trademarks within the origin and distinguishing function. Service marks also need to be protected and registered, and that is done through the same approaches of a trademark. However, there are some minor differences with both approaches due to the fact that not all countries believe in the need for service marks to be registered and protected.
There are indeed different distinctive signs alongside trademarks and service marks. For example, collective marks, certification marks, appellations of original trade banes. These signs have some similarities within features with trademarks and service marks, however. They still have differences.
There are dishonest manufacturers and traders that purposefully imitate a product, not only the trademark but also the labels and packaging used for presentation of the goods. These practices cannot be taken up by the traditional trademark law. In such cases, the trademark owner must rely on unfair competition law and a number of other special rules that might protect him against labelling, and packaging imitations, counterfeiting and trademark piracy.
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