’s latest invitee blogger is Massimo Sterpi. Massimo, a partner inwards the Turin-based IP practise of Jacobacci e Associati, is a fellow member of the editorial board of the European Copyright together with Design Reports; he is likewise an active fellow member of the MARQUES council. Massimo writes:
“Over the years, merchandise marks create got evolved from distinctive signs applied on products to highlight their origin, to brands (i.e. to signs symbolising likewise the goodwill attached to the merchandise mark) and, eventually, to “avatars”, i.e. to variety of fictional characters which impersonate the lifestyle, gear upwardly of values together with emotions embedded inwards the merchandise mark.
In other words, merchandise marks create got matured from distinctive signs ancillary to a production (trade marks), to economical entities valuable per se (brands), to proper “social personae”, having their ain identity together with grapheme (avatars).
In a sense, it is no longer the merchandise score that distinguishes the product, precisely it is the production which impersonates the brand/avatar. As ane commentator said talking close the Lacoste crocodile logo: “the crocodile has eaten the T-shirt”.
Such a revolution cannot survive ignored when trying to protect the novel brands/avatars.
Whereas a traditional merchandise mark, i.e. a sign intended to distinguish a production of a job concern from identical or similar products of other businesses, should survive protected solely against strict adventure of confusion or association, brands – together with specially famous brands – create got to survive protected likewise against dilution, i.e. uses of identical/similar signs for different goods that are probable to create got undue wages of or elbow grease prejudice to the reputation of the brand.
Now, if nosotros see that the latest merchandise marks create got locomote “avatars” – i.e. social personae impersonating the lifestyle, gear upwardly of values together with emotions embedded inwards the merchandise score – their protection cannot survive whatever longer restricted to avoid adventure of confusion/association or to forestall dilution, precisely it must locomote a variety of identity protection. In other words, to properly protect the avatar’s identity, it volition no to a greater extent than survive sufficient to protect it against other identical or similar signs used commercially for similar or different products. In fact, the identity of the avatar – every bit the ane of a physical mortal – may survive tarnished likewise yesteryear non-commercial uses of same (satire, world criticism, purpose inwards undesirable contexts).
The best testify that merchandise marks are immediately considered every bit powerful social players (and therefore, every bit avatars) is the variety of criticism they received inwards the final years. Books such every bit No Logo yesteryear Naomi Klein have strongly criticised the “new” merchandise marks every bit they locomote mere representation of lifestyle (Nike, Gap), loosing their master business office of identification of source and, rather, permitting the truthful source of the production (whose fabrication is oft delocalised inwards the 3rd world) to survive hidden. “Sucks” sites are oft devoted non that much to the character of the products nether the criticised merchandise mark, precisely rather to the merchandise score possessor corporate policies or to the lifestyle they symbolise.
Currently, owners of the novel brands/avatars create got to report how to protect the “identity” of their merchandise marks. Old agency such every bit sentry services on novel merchandise score filings together with patrolling of the markets is no longer plenty to protect this identity.
Patrolling must survive immediately extended to the press, production placements inwards films, purpose of brands inwards artworks, boycotts, together with symbolic attacks.
Proper legal remedies – other than merchandise score infringement actions – together with world relation strategies are to survive devised to protect the build identity together with reputation.
It is immediately clear that damages to the brands produce non come upwardly solely from counterfeiting together with strict (commercial) infringement, precisely likewise from whatever degree of libel or bad world relation deriving from consumers’ boycott, sabotage, satire, world criticism.
Now to a greater extent than than ever, merchandise marks rights (including the novel “identity” right) may yet conflict amongst other key rights such every bit the correct of gratis speech communication or the artistic liberty of expression. Influenza A virus subtype H5N1 proper residuum betwixt these rights has to survive establish on a illustration yesteryear illustration basis”.
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