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Wednesday, 30 November 2011


In broader terms, trademark is a sign, mark, word or other signifier used to distinguish a good or service produced by one undertaking from the good or service of other firm. But in business terms, it can be a marketing tool, which can provide information to the consumer in many levels, for example, it can reduce the search cost or can provide quality guaranty as well as a reference point to the consumer while making their purchase decision, trade mark can even communicate with the consumer.
Traditionally, trademarks were in the form of letters, numerals, words, logos, pictures, symbols, or combinations of one or more of these elements (conventional trademark) but now shape, sound, smell, taste and texture even 3D animation can be a trademark. This development in the field of trademark has changed some aspects relating to the function of trademark. The traditional view regarding the function of the trademark was that it gave the owner of the trademark an exclusive right to exploit the marked goods, which gave the consumer a sense of quality guaranty relating to the trademark as they can assume that the goods has the same trade origin. So the traditional functions of the trademark was it provides a common trade origin, which helps the consumer to relate the different marked goods as of same undertaking. But with the development, this function of the trademark has extended to the level where it attracts the consumer at emotionally and psychologically.
Thus, trademark play an important role in the field of marketing, as it can attract consumers or can induce consumers to buy the marked product.  Keeping this in mind, there can be the following function of the trademark in context to law and marketing.


Function of Trademarks

One of the core functions of the trademark is the Origin Function, where trade mark helps to identify the source and the undertaking responsible for the products sold in the market. Keeping in mind the origin function, another important function performed by the trademark is the Quality Function, which means that consumers choose a particular trade mark for its known quality products. Further, the trademark performs Marketing Function, which means that trademarks play an important role in advertising and communication with the consumers. Its normal for consumers to make purchases based on continuous influence of advertising and other promotional activities. And finally trademark performs an Economic Function, that is to say, for a firm its established trade mark is a valuable asset as it may be licensed or franchised. 

Furthermore, a trade mark provides the legal basis for establishing an exclusively-controlled distinctive identity or “brand” that can be used for marketing goods or services of the kind for which it is registered. In simple word, brand does not have legal protection, trademark gives legal identity to a brand and helps it do develop. This identity or brand is based on the fact that marked products have a common trade origin which the trade mark signifies. Products with such an identity are likely to be consistent with each other in terms of their quality and other characteristics and to remain consistent over time. This likelihood of consistency is due to the fact that one undertaking has the exclusive right to confer the marketing identity that the trade mark signifies on products of the kind for which it is registered and the fact that this undertaking is in a position to determine the quality and other characteristics of the marked products and thereby to ensure their consistency.

This ability to show the likelihood of consistency, give a trademarks its marketing power, which   can attract consumers to the products that they identify. Though these products to command premium prices on the market or to sell in much greater quantities than they would do otherwise or leads to some combination of these effects. The capacity of trade marks to attract consumers to marked products and gain marketing power suggests either that consumers recognize that trade origin is a good basis for rational decision-making or that signs can gain some irrational hold on the minds of consumers and tilt their decision-making. In law, this attractive power is known as “goodwill”. In marketing, it is termed as “brand equity”.

“If a firm is to attract customers to it, it must draw those buyers to some ‘name’ that is unique and known. Without the distinctive trade mark, brand name, trade name, or company name … it would be impossible to pull customers to the particular goods or services of an enterprise and the firm would be unable to take advantage of the increasing returns to scale and scope. A company’s advertising is pointless with no name to promote. Indeed, the very endurance of the firm seems linked with a name or names that over long periods continue to bring in customers.”[1]
So, every business must persuade their potential customers to move from brand awareness to brand preference and ultimately to brand insistence, where consumer refuses to accept alternatives. This can be done only with the help of a trademark. For the trademark to perform its additional function, it is prerequisite for the trademark to have recognition and only the recognised trademark have been given legal right to perform its additional function .i.e. the marketing function.

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