Sakshi Sharma, an intern at Khurana & Khurana, Advocates and IP Attorneys looks into the…
It is a common practice to interchange the phrases “trademark”, “brand”, and “trade name” despite the fact that they each refer to distinct concepts in different contexts. The meaning of the terms might vary, particularly when they are used by employees from different areas of a business. A company’s trademark, brand, and brand trade name are frequently mistaken with one another. In general, brand identities which are used to represent enterprises, such as logos and designs, are protected under both trademark law and copyright law since they are original artistic works with a creative component. Copyrights and trademarks are two distinct types of intellectual property that are governed under various laws with varying levels of protection.
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The brand’s two main objectives when utilised in marketing are (a) to represent the company in the public eye and to increase its awareness and recognition and value proposition. The fundamentals are secured through: the brand name (often the trade name), the claim (which frequently represents the company’s purpose statement), and the logo. (b) a brand is a collection of promises that a product or service will satisfy customers’ expectations for a particular level of quality. The trademark is a legally recognised way to safeguard the intellectual property connected to a company’s identity. The trademark may take the shape of a word, phrase, design, symbol, logo, or a medley of several of these. Legal protection of the firm is crucial as the marketing department has invested so much effort in developing and documenting the company’s Unique Selling Proposition (USP), core values, market position, corporate identity, and brand strategy. However, it can only be original if another market participant has not duplicated it.
Logos being a brand identity just has one prerequisite: it must be, or develop into, distinctive and not generic in connection to the business for which it is utilised, thus protection under Copyright is available. Catchy slogans like “Just do it” and distinctive objects subjected to ordinary things like “three stripes” have changed the way people identify themselves.
Legality of the intersection
There are essential works and shared literature in both domains since trademarks and brand logos can be examined together as associated entrepreneurial processes. Despite this, the focus of this special issue is to emphasise on the detailed study on trademarks, which are the more obvious manifestations of a brand. The quality function of a trademark relates to the assurance of particular positive qualities and subjective values, while the communication function refers to the dissemination of the trademark image to and among customers through advertising. In the case of L’Oreal v. Bellure, the court stated that-
“these functions include not only the essential function of the trademark, which is to guarantee to consumers the origin of the goods or services but also its other functions, in particular that of guaranteeing the quality of the goods or services in question and those of communication investment or advertising.”
While every corporate entity strives to be a well-known and invests a lot of time, energy, and creativity into designing appealing brand identities and logos. Due to their uniqueness and connection to their owners, brand identities could effectively represent enterprises, but they might not meet the criteria for originality or innovation. For instance, a logo could be based on a relatively simple shape that has gained popularity and is connected to a commercial organization, like “Nike’s Swoosh”. However, due to a lack of artistic merit, the same might not be protected under copyright. In a similar vein, the usage of a particular colour or mix of colours may result in strong brand identification without necessarily being protected by copyright. Nevertheless, brand logos lays out the same essentials but particularly adds to identity, image, personality, character, culture, essence, and reputation of the company. In this context, “brand equity” refers to the monetary value of a strong, well-recognized brand. Experience has shown that well-known brands are far simpler to market than lesser-known ones. Despite the fact that brand equity is an intangible part of a company’s assets, it represents an increasing piece of that value that can be commercialized. Most companies are valued more than the sum of their actual assets. Specific expressions or words that are significant to your brand, such as your slogan, might be legally protected by trademarks. They could also be trade dress, which describes the creative components that go into creating the image of your particular good or service.
It is evident that a trademark and a brand logo are inextricably intertwined. It is important to note that a trademark is a brand’s image or identity as a commercial tool for any company. The prerequisites for an identity to qualify as a brand identity are that it can be (a) graphically represented, (b) it isn’t generic or descriptive, and (c) it doesn’t infringe on any existing trademarks. This not only enables a business owner to seek legal protection for his diverse identities, but it also ensures that those identities will always be protected. While a trademark offers the brand legal protection, a brand logo may be thought of as the recognisable components of a company’s corporate image that grows and develops over time by inspiring trust. Companies should use trademark protection because they don’t want to lose the financial investment they made in building their brand.
If a brand logo possesses unique creative and aesthetic qualities, it is protected by copyright and could be registered as an artistic work; in which case, remedies under copyright law may be sought for cases of enforcement. In both trademark and copyright enforcement cases, registration has significant evidentiary value. Therefore, the best course of action for any business owner would be to seek legal protection for their distinctive brand logos and secure both statutory trademark rights and copyrights in connection with those rights.
 L’Oreal v. Bellure CJEU, 2009, case C-487/07 at para. 58.