Juan Pablo Sanchez – Associate
When developing a venture, the entrepreneur or partners are faced with the need to develop an image, a phrase or a combination of both, which allows the client or consumer to identify the values and quality of the product or service offered by the venture. From the definition of the image or phrase that will identify the company to its consumers, the brand of this company is consolidated.
Over time, the brands of different companies have acquired a really high value for businesses. In spite of its intangible nature, this allows the appearance of new products containing this brand to be automatically valued due to the high prestige represented by such brand. This is especially true in the case of well-known brands, which are widely recognized by the consumer and the products of these brands are automatically valued because they belong to the owner of this brand.
This said, what should entrepreneurs consider when developing and building their brand?
In order for a trademark to be eligible for registration, without potential opposition or hindrance to its protection and registration, as well as to be recognized by its target audience, it must have a distinctive character.
This distinctive character consists of the capacity that the trademark must have to allow the user to distinguish in the market the products or services of one company from those of another. Thus, based on this distinction represented by the trademark, with its acceptance and growth in the market, through its performance, it will allow a trademark to be considered as notorious or renowned.
Just as a brand may become well known and well accepted in the market, the opposite may be the case and, due to an unexpected performance, the brand may be affected by a poor acceptance or lack of adaptation in the market. In this way, the brand produced will not be effective and will have an adverse effect on the company that owns it.
To prevent this brand from being one of the factors that result in undesired or unexpected performance, it is important to be rigorous and detailed in the elaboration of the brand. It is important that the brand developed clearly reflects the values of the company and the business philosophy behind the products or services offered. Likewise, it should consider the brands managed by the direct competitors, to avoid similarity or confusion with them and that it may be considered more attractive than the competitors’ brands.
Likewise, for a brand to be successful and acquire the status of notorious or renowned, it is important that it allows consumers to identify with it. Thus, not only will there be a consumer link between the customer and the brand, but also an emotional and subjective link will be acquired, which will allow a greater and better growth of the brand in the market, compared to its competitors.
Hence, the distinctive character of the trademark, when acquiring the level of acceptance and recognition in the market, will allow the trademark to fulfill additional functions. These functions may be those of identification, which will allow the user to recognize that the product associated with the trademark corresponds to a company with experience and tradition. A qualitative function will also be generated, being linked to a recognized brand, the consumer will automatically identify the product with a high value and quality in relation to other competitors. And perhaps the function that provides the greatest benefit by having a high value brand is that it does not require large projects or investments in advertising, having reached this level of recognition, consumers are directed to the quality that is associated with this brand.
Thus, the development and elaboration of a brand is no longer a minor factor when starting a business and product development, on the contrary, it is an important task to be considered by the entrepreneur at the beginning of a new activity. It is necessary to have a creative team that can reflect and represent the ideas and feelings that a certain product and service seeks to express.
However, having a trademark that has been worked hard and has the potential of acquiring this qualification of renowned or notorious, is not enough. In order for this important work not to be damaged or taken advantage of by competitors or third parties who are not related to the company or the product, a proper legal protection of this trademark is necessary.
This protection arises and is produced with the registration of the trademark by its owner before a national, community or international public registry, having a property right over the trademark from this registration. Likewise, by having the registration of the ownership of the trademark, the right of its owner is recognized in order to oppose or avoid any use contrary to what is permitted by the proprietor, and third parties may not use this trademark without the due authorization of its owner.
Why is it important to register the ownership of the trademark as soon as possible after its existence?
In intellectual and industrial property matters, a principle is recognized as the main maxim ”The first in time is the first in right”. This maxim means that the first person, natural or legal, who makes the legal registration of a trademark before the public registry, will be considered as its legal and legitimate owner before third parties. Thus, except in special cases, it will not matter if its legitimate owner has previously made use of the trademark without registering it, whoever makes the first registration of the trademark will be its real owner in legal life.
Therefore, we can conclude that it is of utmost importance to develop a trademark that has an important distinctive character, and once the trademark is consolidated, it is even more important to register it as a trademark holder.