Trademark as a vehicle of social divide

It was Shakespeare who, through Romeo, had thrown caution the wind, and questioned the significance of a name, for a Rose, called as anything but a rose, would smell just as sweet. What the Bard failed to anticipate was the importance that would come to be associated with certain names, many centuries hence, as a result of intellectual property law.

A name, rather a trade name, provides an identity to a business entity. Often the trade name may be one of the distinctive features of that business. This trade name matures into a trademark, whereby the trademark becomes a badge of quality. The mere mention or display of such a mark, would evoke a certain emotion in the minds of the relevant people, and thus a trademark may serve as a symbol of uniqueness, and function as a source identifier.

The Trade Marks Act, 1999, which governs the law relating to trade marks in, and in relation to India, envisages a trademark to be any mark, including “shape of goods, their packaging and(/or) a combination of colours”,  that is capable of graphical representation, and which serves as a distinguishing feature and helps in differentiating between the goods and services of one from the other.

Distinctiveness is a vital feature of a good trademark, for it is the enabling feature which makes a trademark unique. Protection of a trademark is generally directly proportional to its uniqueness and/or novelty. Since a trademark serves as a badge of origin, it is expected that a mere mention of the mark would be sufficient to enable the target consumer to associate the trademark and/or its distinctive feature with the origin of such mark, that is the business concern. Eg. The phrase “Just do it” has become identifiable with Nike; while the image of a leaping wildcat, is associated with Jaguar with respect to automobiles, and with PUMA for apparels and other related goods.

I recall an incident, at least a decade ago, when I had noticed a rickshaw driver wear an extremely fancy PUMA watch. I was quite shocked to see the gentleman, who was otherwise wearing broken slippers, sporting a branded watch. It was only when I examined the watch a second time that I realised, that the man was wearing a watch, brandished with the deceptively similar mark “PAMA”.

While practically almost all goods and services are marketed from the point of origin, under some brand name, ‘branded’ goods and services would technically connote those brands which have a certain ‘value’ associated with them. This ‘value’ is the goodwill, which though cannot be absolutely quantified, is yet an innate element or sinew of the brand or the trademark as a whole.

It is basic economics to be honest. An item as simple as a wrist-watch, which traditionally is a device that tells the time, has diverse selling prices depending on the brand under which it is marketed. A basic analogue wrist-watch marketed by Fastrack, which may be costing Rs. 1500/-, might very well be priced at nothing shy of Rs. 4500/-, if sold under the brand name of Tommy Hilfiger. In this scenario both Fastrack as well as Tommy Hilfiger are bona fide trademarks in their own right, and yet there is a glaring disparity in the pricing of similar goods with similar features.

The theory of quality-price relationship in Economics professes the consumers’ indulgence towards nurturing a stigma against less-priced products. It recognizes that a customer is drawn towards purchasing a product which is higher priced, on the basis of the assumption that a higher priced product implies better quality. While such a belief may hold water, yet there is no absolute guarantee that higher price begets superior quality. It is more important therefore, to be a smart consumer and undertake a product or service research, prior to availing it. Developing upon the lines of such a theory, it is needless to say that often the customer has a bias against ‘local’ and ‘un-branded’ products and services.

Hence, it could be said that trademark leads to a class divide or acts as a vehicle of social divide. In essence though really, the basic idea of trademark had always been to differentiate a good or service of one, from the good or service of another. The advent of Trademark had been to assure a certain level of quality—a mark which would different the product or service marketed by one from another; and where the mark itself would function as a seal or badge of quality.  Therefore, it is more of a socio-economic divide than a social divide, and yet all intellectual property, in essence functions upon the economics of money. It is a business indeed, and there is surely a monetary figure attached with owning and developing a trademark, or brand image/value.

Nevertheless, the two instances mentioned earlier—both pertaining to watches—refer to two varying positions in law. The first situation is an instance of infringement of a mark ‘PUMA’ through tarnishment by a ‘local’ or ‘un-branded’ product, and is illegal. The second situation is simply an instance of brand value coming into play, and two similar products being priced differently owing to differing brand value or goodwill. Interestingly though, the first instance is more apt for a discussion under intellectual property and the laws governing the same; while the second is more of an ethical, social or behavioural issue.

A product marketed under the aegis of a recognizable trademark functions as a status symbol, and while there is nothing per se negative about it, it could lead to a class divide. The problems of forming such a gulf in class are, on the contrary, becoming detrimental to the trademarks themselves. In order to bridge the gap, there are many imitation products available, which are being marketed under deceptively similar marks, and the only recourse available against such infringement would be on the wings of litigation. Incidentally though, many brands have begun to diversify within their product range, Eg., the watches division of TATA not just comprises Sonata, Fastrack, Raga, Octane and Xylys. In addition to that, in 2011, the company secured the licence for marketing and distribution of Tommy Hilfiger and Hugo Boss watches. Thus, the TATA group markets something as basic as a watch, under various trademarks and brand names in order to maximise their outreach, and therefore close the gap on the social and/or socio-economic divide. Of course that would not be possible for supremely niche brands like Rolls Royce, or Christian Louboutin, yet their target consumers are hardly the everyday Joe.

In my ninth standard, I remember, during one of the lectures, my desk-mate was looking at me with confusion. He enquired from where I had purchased my spectacle frame. When I wanted to know the reason behind such a question, the classmate pointed at the mark on my spectacle frame, which said “GAP”. Subsequently, I realised that the spectacle frame that I was wearing, was an imitation of one of the original products from GAP—which obviously is a foreign company. Therefore, quite unknowingly to me, my spectacles became the talk of the class, and it was not until many years later, that I realised the legal implications of an infringing mark. What I did realise then, was the sheer disbelief in the eyes of a few of my friends, who could not believe that I, a boy belonging to a middle-class family, was wearing a “GAP” product, and that was perhaps my tryst with a class divide.

Though initially the concept of trademark was used by the manufacturers and/or sellers in order to differentiate between the source or origin of the products or in order to create a niche in the market for themselves but today, the trademark features more as an ornament for the product, although the basic feature and usage of the product remains same. In the race to increase the brand value and maximise the utilization of the product, the brands are aften subcategorised keeping in mind the related socio-economic factors, and that is perhaps how, the various brands are attempting to maximise their outreach. That is exactly why there are various sub-categories within a product now, and trademarks are also being used for merchandising purposes as well. Even though it is not possible for every type of brand to cater to each and every strata of the society, and the reasons for such would, in all fairness be more of a discussion in economics, the brands have already begun profiting upon their value, and image to diversify their scope as well.

Just like Bruce Wayne had said “As a man, I’m flesh and blood, I can be ignored, I can be destroyed; but as a symbol… as a symbol I can be incorruptible, I can be everlasting”, a trademark is envisaged to be such a symbol, and everlasting badge, assuring a certain level of quality and excellence. As more and more brands begin to diversify and penetrate to the bowels of the market, they can prevent their trademark from acting as a vehicle of social divide, and truly be incorruptible, an everlasting badge of honour.

About Biswaroop Mukherjee 0 Articles
A practicing advocate, registered on the rolls of the Bar Council of West Bengal, Biswaroop is still learning the ropes of litigation. He harbours an interest in Intellectual Property laws generally, and Trademark and Copyright law in particular. He nurtures a keen interest in reading, writing, music and photography. Virtus et Scientia— the motto of his alma mater, Don Bosco Park Circus, is what he strives to abide by.

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