In this article, we will introduce a topic that became very important and interesting for consideration lately, in particular the role and significance of trademarks identifying certain goods or services. In this regard, the trademark registration is very important asset in a global economy, and the value that the same has in a modern business environment is immeasurable and it might even reach several tens of billions of dollars, which speaks for itself in terms of its importance and need for its quality protection. At present, it is absolutely unthinkable to imagine business of a modern, large corporation without its trademark, and it can be even said that it becomes the easiest and the fastest way of communication between the manufacturers of goods, i.e. the service providers and those for whom such goods and services are intended, i.e. the end users.
In Bosnia and Herzegovina the trademark protection is governed with the Trademark Act which came into force in 2010 and as such was a part of a whole set of legislative solutions in the field of intellectual property. Actually, it came as a result of a need for harmonization and adjustment of domestic legislation with existing modern European regulations. In accordance with the abovementioned, we can generally define a trademark as a right to protect a specific mark, which in economic transactions serves to distinguish goods or services of a legal entity or an individual from the same or similar goods and services of another legal entity or individual. Based on this conceptual definition of the trademark, it can be concluded that the trademark is a right, and actually very specific type of right, which unfortunately, in our country still did not take the position that it deserves. This is, among other things, a consequence of not so highly developed level of awareness of the entire population as well as business entities about the importance of trademark protection. Therefore, in the coming period a special attention should be paid to education of citizens as well as managers of companies.
Thus, the trademark protection understands protection of a mark suitable for distinguishing the same or similar goods or services and the same has to be graphically displayable. In general, it understands recognizable words, including personal names, drawings, letters, numbers, images, product shape or packaging, colour arrangement, three-dimensional forms or a combination of these elements. When choosing a particular trademark for identification of certain goods or services, it is necessary to take into account its authenticity and expression, since a carefully selected and well-known trademark, which will be protected later, is a precious asset for any business. The reason is that consumers themselves value trademarks and they are willing to pay much more for a product bearing a recognizable trademark that meets their expectations. However, it is important to have in mind that the term trademark must be separated and strictly distinguished from the notion of brand and similar concepts.
The brand, as a term, is defined in a way that includes a number of elements that can include the brand name itself, its appearance, and appearance of packaging, then packaging design, label, shape, advertising and promotional activities. The brand is a term that our legislation, as well as most of the legislations in Europe, does not recognize, and in most cases it is used by marketing experts. Therefore, it can be concluded that while the trademark is exclusively related to law, on the other hand, the term brand is a marketing term. Therefore, the brand is a different and broader term than the trademark. The same can include a trademark, while a trademark itself can represent a supply for a safer future of the brand because a certain product, i.e. service derives its strength and value from the trademark protection. A brand that is precisely protected in this way is more mobile, i.e. has great potential to be independently involved in market affairs and to realize its perceived role in the market. Summarizing the above issue of the trademark and brand, we can conclude that the trademark is not a brand, not a logo, a company name or other sign, such as, for example, quality sign, and this should be particularly emphasized.
Furthermore, the main function of the trademark is to enable customers to identify the products and services of a particular company, making it different from other same or similar competing products and services. There is no need to emphasize the economic, legal and any other need for the trademark protection of a particular product since the numbers speak enough for themselves. It is believed that the value of the world’s most famous trademarks such as Coca-Cola, Apple, Samsung and others exceeds the overall value of other companies and the same is measured in tens of billions of dollars.
The basic advantages of trademark protection are reflected in the fact that protected intellectual property, or a mark, becomes the subject of legal trade. In this way, the mark same becomes a growing value and therefore also increases the value of the business entity as a holder of that right. In addition, trademark protection contributes to the suppression of the grey economy and the suppression of unfair competition. Furthermore, this legal protection also acts preventively, and nobody can use the protected intellectual property without authorization of its holder.
In addition to all these advantages, the trademark protection represents a consumer protection tool as well marketing tool, but in addition it is a basis for establishing a positive image in the public. On the other side, the rightful ownership of a reputable trademark gives the company an immediate competitive advance. Ultimately, the right holder has the exclusive right to prevent other persons from using or advertising the same or similar product under the same or confusingly similar trademark, which, among other things, implies the right to prohibit other persons from unauthorized placing trademarks on the goods, its packaging or assets for marking of goods; offering goods, placing them on the market or storing them; import, export or transit of goods under the trademark; the use of a trademark on business documents or for advertising, and the like.
Bearing in mind the current relations in the world market of goods and services, the desire of “big players” to acquire an advantage in a competitive market, at any cost, without choosing the means to achieve their goals, then the leading idea of management of all manufacturers, traders, distributors and all other entities should primarily be the legal protection of such products and services obtained through the trademark protection. Only in this way there will be established prerequisites that a product or service become recognizable and attractive to end users, and in addition only in this way can be prevented possible negative consequences and damages that might arise from unauthorized use of protected goods by third parties. This is particularly related to the fact that a large number of products and services within the same market segment impose the need to be recognizable and easily identified in the minds of consumers and users, as it creates and reinforces customer’s attachment to the same and achieves easier sales of such products.
Author: Ognjen Bogdanic, Senior Associate