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PULPOU BLOG
Why It's Important to Protect Your Brand on the Internet: Legal Tools and Recommendations
The digital environment is not only prone to the likelihood of infringements on the rights of companies and entrepreneurs, but it is also a fertile, suitable, and attractive ground for such violations. In this article, two authors from Estudio Jurídico Beccar Varela summarize the main aspects of international legislation.
The internet shortens distances, bringing us possibilities that were unimaginable just a few years ago, to the point where we are now accustomed to being able to buy any product or hire any service anywhere in the world from our homes, computers, cell phones, or any device with internet access at our fingertips.
It is common for us to buy technology or clothing, food for people or pets, decoration items, or to buy tickets to the cinema, theater, or concerts, or to purchase insurance, personal loans, or any other service. This demonstrates the exponential growth of e-commerce in recent years.
Economically, e-commerce is expanding to historical levels worldwide. In this context, companies and entrepreneurs have taken advantage of the internet by using e-commerce platforms, allowing them to expand their sales channels and maximize sales at lower costs. While the internet represents enormous opportunities, it simultaneously presents challenges and risks.
The digital environment is not only prone to violations of the rights of companies and entrepreneurs but also a fertile, suitable, and attractive ground for such violations. Infringers have better possibilities, mechanisms, and tools to remain anonymous, carry out the violation, and quickly attempt to remove all evidence of the crime.
Types of Trademarks and Rights Conferred
Traditionally, the market features all kinds of trademarks: words, drawings, emblems, designs, color combinations, containers, product shapes or designs, wrappers or packaging, slogans, and advertising phrases, even 'trade dress' or the commercial image of a company can constitute a trademark if they are distinctive. The "trade dress" may consist of various elements, including colors, shapes, graphics, texts, typographies, arrangement of elements in products, or in commercial premises, the shape of the building, the arrangement and coloring of the furniture, and the design and coloring of uniforms, among others.
Any distinctive sign used to identify a product or service constitutes a trademark, and its owner has the exclusive right to use it to distinguish their goods or services from those of competitors in the market.
Distinctive signs also protect the name that distinguishes a trader's commercial or industrial activity, commonly known as a trade name or commercial designation.
Thus, the exclusive right of use or exploitation that a trademark or commercial designation holder possesses implies that only they can use it, authorize its use by third parties, and more importantly, pursue and request the cessation of unauthorized use. They can also seek the cessation of using trademarks or designations confusingly similar to theirs to distinguish the same products or services and the cessation of using trademarks or designations that constitute an imitation or counterfeiting of theirs.
Importance and Role of Trademarks
Trademarks play a prominent role in the competitive process. As consumers, we often remember products by the trademarks they carry, distinguishing them from other options. We often choose a product or service we already know over another because we expect it to have a certain quality based on previous experiences.
As a competition vehicle, trademarks allow manufacturers or traders to differentiate themselves from competitors and advertise their products and services, ultimately aiming to build a clientele around their brand.
Owning a trademark is a recognition of the effort made by traders who have generally invested years in positioning their products and services, convincing consumers to choose them, and, even more challenging, maintaining the brand's positioning.
Granting or recognizing exclusive and excluding exploitation rights over distinctive signs aims to promote lawful trade and fair competition, rewarding traders through competitor identification and distinction via their signs while protecting the consumer.
Trademark infringement affects not only the trademark holder but also the consumer public, as the illegal use impacts all the functions of the trademark as a distinctive sign (such as identifying the product or service's origin, distinguishing it from others, and guaranteeing its quality). This likely leads to consumers making erroneous decisions when purchasing a different product or service than intended. The high risk of illicit diversion of clientele is undeniable when using a third-party trademark or imitating or counterfeiting it.
Defense of Trademarks and Other Distinctive Signs: Legal Instruments
Countries have legislated on improper uses and trademark infringements to varying extents, limitations, and exceptions and repress acts of unfair competition. Two international instruments establish minimum protection standards that must be guaranteed by countries that ratify them. First, the Paris Convention for the Protection of Industrial Property (the 'Paris Convention'); second, the Agreement on Trade-Related Aspects of Intellectual Property Rights within the framework of the World Trade Organization (the 'TRIPS Agreement').
Both the Paris Convention and the TRIPS Agreement provide for the protection of trademarks and trade names unlawfully applied to products, guaranteeing the possibility of requesting their seizure or prohibition of importation into the territory of those countries where the trademark or trade name has legal protection or has been imported with a counterfeit trademark or trade name.
In particular, the TRIPS Agreement empowers judicial authorities to order quick and effective provisional measures to prevent infringement when there is a likelihood that a delay would cause irreparable harm to the rights holder or there is a risk of evidence destruction.
The TRIPS Agreement expressly authorizes authorities to order quick and effective provisional measures to prevent counterfeit trademark goods from entering commercial circuits, including imported goods immediately after customs clearance, and to preserve relevant evidence related to the alleged infringement.
Additionally, the TRIPS Agreement allows the trademark, designation, or trade name holder to request administrative authorities to suspend the release of these goods for free circulation upon suspicion of counterfeit trademark or pirated goods importation.
The provisional measures established by the TRIPS Agreement provide the opportunity to obtain, on a precautionary basis, the cessation of the illicit use of trademarks, trade names, or designations and the suspension of the release of allegedly infringing goods through precautionary measures in accordance with the procedural rules in force in Argentina.
Some Recommendations
From a legal perspective, registering distinctive signs as trademarks is essential as it facilitates the initiation of civil and criminal judicial actions and is a prerequisite for requesting precautionary measures guaranteed by current legislation.
Registering trademarks along with a professional and proper management of the trademark portfolio is the first step towards an efficient and successful defense against infringements, as it allows the trademark holder to effectively exercise their rights and defend against infringers.
Additionally, all investments in brand positioning will nourish the registered sign, increasing the brand's recognition and market value as an intangible asset. Therefore, the trademark owner should not tolerate unauthorized uses or infringements of any kind, making it important to regularly monitor third-party use of their trademarks, as such illicit use will seriously damage their ability to distinguish themselves to consumers.
In conclusion, notwithstanding the legal tools previously mentioned, given the flexibility of the digital environment, the infinite possibilities of infringement, and the difficulty of identification and pursuit, a global and preventive strategy that includes effective mechanisms for detecting infringements is essential to overcome the challenges posed by e-commerce.
By Florencia Rosati and Mariana Lamarca Vidal, attorneys at Estudio Jurídico Beccar Varela.
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