November 9, 2018
Strong focus on special characteristics of fashion and luxury brands and importance of intervening in trademark infringements in the MARQUES conference recently held in Paris Maria Ojala, an IP lawyer with Kolster, was there to get to know the latest IP trends.
When the theme of the event is Branding Style – Appearance, Aesthetics and Éclat, it is certain that at least brand protection will be one of the topical IP issues dealt with. That was indeed the case when I took part this autumn in a trademark conference, organized by MARQUES, the European association representing the interests of brand owners.
The theme produced many interesting viewpoints to the intellectual property rights of fashion and luxury brands, in particular, but the conference offering applies to brands more broadly as well.
It is vital for all brands to defend their trademark, not just for success products enjoying the role of international icons. What matters the most is that the company creates an extensive IP strategy as early as possible in cooperation with experts of the field. The strategy defines the what, how, where, when and why trademarks and other IP protection are dealt with and how to enforce them, if need be.
It is important in the IP strategy to take into account the special features of each fields - in the world of fashion, for example, that collections change at a fast rate per season, and that the number of different products is often high.
The purpose of an imitation is always to benefit from favourable views and good reputation associated with the original product.
The traditional line of thinking has been that the more the imitation resembles the model, the more it interests the consumers. Such an idea was shot down in Paris. From the viewpoints of consumer psychology, an imitation resembling the original brand name product too much is not popular among consumers. Consumers prefer more subtle imitations which are products that resemble their models only to some extent - for example, imitating a theme of the external appearance of the original product.
When the original and imitation look very much the same, it is difficult to tell which is which, and the risk of confusion increases. If the holder of the genuine brand tackle such blatant imitation, mix-ups can be avoided and the value of the trademark enhanced.
In addition to high similarity products, also more subtle imitations of brand products should be tackled when need be. It is noteworthy that, according to studies, consumers approve of subtle infringements more willingly than obvious blatant imitations.
It is also possible that even if the imitating product does not belong to the same category as the original, the imitation may negatively affect its model. An imaginary example could be Tropicala lemonade, an imitation of the Tropicana fruit juice. Consumers may start to see the juice more unhealthy than before, because on the market it is comparable to a soft drink. As the example reveals, the imitating product may actually hurt the original brand.
Because such patterns are often very simple, it is not necessarily possible to protect them by design right. That is why the aim is to protect these design integrated source identifiers with a trademark. This, however, involves a few challenges, such as whether the features are original enough to be trademarks. Protection often requires a long-term continuous use, which makes simple pattern distinctive.
The requirement for graphical representation has been removed from the EU trademark legislation. The same reform will soon be included in the Finnish legislation. A trademark is no longer just a traditional logo or word mark. The expansion introduces new potential for brand protection when for example a moving image or audio file can be protected as a trademark. It is also worthwhile to keep in mind that the appearance of a product can be protected with a trademark.
A unique and recognizable design of the product and product packaging are important. An original design makes the work of copycats more difficult - but only if it is protected by a design right or trademark.
Our IP lawyer, Maria Ojala, is an expert in trademark infringements and marketing law, in particular, and assists our customers in matters relating to protecting and defending trademarks.
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