Before addressing the central theme of this article, it is necessary to point out exactly in which area this important topic is located. To that end, we will say that Intellectual Property is the area of Law that covers two important areas such as: Intellectual Property, in which Copyright and Related Rights are immersed, and the branch of Industrial Property, in which Figures such as patents, industrial models, Utility models, trademarks, among others, are immersed.
Having already located the brand in the legal context, we have to be clear about what is meant by a brand. A trademark is that distinctive sign that serves in commerce, to distinguish one sign from another of the competition. In this case we will refer, for greater understanding, to the concept used by Decision 486, which in its article 134 clearly states what is meant by a trademark: FOR THE PURPOSES OF THIS REGIME ANY SIGN THAT IS SUITABLE TO DISTINGUISH PRODUCTS OR SERVICES IN THE MARKET WILL CONSTITUTE A TRADEMARK. SIGNS THAT MAY BE GRAPHICALLY REPRESENTED MAY BE REGISTERED AS TRADEMARKS. THE NATURE OF THE PRODUCT OR SERVICE TO WHICH A TRADEMARK IS TO BE APPLIED WILL IN NO CASE BE AN OBSTACLE FOR ITS REGISTRATION.
From this definition we are clear that it should be considered as a trademark, and to be more exact, we point out what is established by Decision 486, with reference to what types of signs can be considered as trademarks:
a) The words or combination of words.
b) Images, figures, graphic symbols, logos, monograms, portraits, labels, emblems and shields.
c) Sounds and smells.
d) letters and numbers.
e) A color delimited by a shape, or a combination of colors.
f) The shape of the products, their packaging or wrappers.
g) Any combination of the means indicated in the previous sections.
Following the regulations that govern us, for an entrepreneur, business owner, to enjoy the protection of his brand, he must request registration in the Intellectual Property Service.
The brand, meanwhile, is an incorporeal asset, an ideal identity, a conception of intelligence. However, it has the ability to be captured, in a word, sound or figure or other element, through a specific material or channel. Keep in mind that the brand, as well as all the elements that make up an Intellectual Property portfolio, constitute the most valuable assets of any company or business. That portfolio of intellectual property will undoubtedly give its owner the identity and positioning to go out and compete in the market.
All large, medium, small entrepreneurs have to take into account that in order to use one and have the power to license it or be able to earn economically, they must register it. That registration will give you the power according to law to defend it from misuse by a third party or to exclude from that use those who intend to use it improperly. This registration lasts 10 years, after the expiration of said period, the trademark must be renewed so that it does not expire. That is to say, that the same is no longer considered as the one that initially registered it, being able to be appropriated by an interested third party. To prepare trademark registration applications and define their scope of protection, it is essential to use the International Classification of Goods and Services established by virtue of the Nice Agreement of June 15, 1957, a Classification that is updated annually.
Everything expressed occurs essentially in physical reality, however, to think about the protection of trademarks in the virtual world, one must start from the fact that the trademark cannot be protected in the digital world that does not have the respective registration. before the corresponding authority.
The advent of social networks and the digital world has transformed the way of buying products and services advertised and purchased by the consumer. The purchase of products and services has been even more relevant throughout the period of the pandemic, however, these new business opportunities have given rise to a series of illegal acts and violations of the use and registration of trademarks, unquestionably making protecting them a challenge for business owners who have positioned themselves with a lot of work and investment. This challenge translates into the need to implement actions to protect their brands in the virtual world.
It must be taken into account that virtual markets grant pirates, usurpers and offenders an enormous degree of anonymity, making it easy for them to hide the evidence that demonstrates the illegality of their actions, especially those with which they can unfortunately come to a conclusion. public or segment that comes to have enough knowledge to identify these actions, and therefore be easy prey to deception. The damage caused by usurpers of rights is incalculable, which is why experts recommend taking action in this regard.
Among those measures may be:
- Have a well-managed Intellectual Property portfolio and an appropriate strategy. For this, and in a reliable manner, the respective Intellectual Property protection must be available, a protection that will undoubtedly be achieved with the registration, otherwise, defending the trademarks against infractions, usurpations that occur in social networks, will be very difficult. . For this reason, it must be insisted that if one seeks to protect an intangible such as a trademark, it must have been registered, and once this registration has been produced, a policy of use and commercialization of products must have been implemented with it.
- Determine, according to the elaborated intellectual property strategy, which social networks you will go to to promote and position your brand and on which platforms to market your products and promote your services
- Take into account what measures the platform on which your products are going to be offered has to unsubscribe the infringers of your trademarks. Today with the advancement of technology, all platforms already have technological systems to unsubscribe alleged offenders.
Another of the measures that the businessman, business owner or entrepreneur must have is to educate the consuming public, warning of the risks of consuming or buying products that are not original. He will be able to carry out educational campaigns to teach how to check the differences between the original products and the fake ones. Bear in mind that this consumer education campaign is of real importance in cases of medicine, in the perfumery and cosmetology industry, in which a counterfeit, adulterated product can cause enormous damage to health, integrity and life itself.
Likewise, it is vitally important that business owners, entrepreneurs, and entrepreneurs become aware of the means that technology provides, already referring to artificial intelligence with which, thanks to current programs and systems, it is possible to identify online false, infringing products and even discover the identity of third parties who deceive through electronic commerce networks about the quality, origin and attributes of products, as well as in the offer of certain services that are also identified with a certain brand.
Keep in mind that all these measures will be valid, without a doubt, if the owner of a trademark has legally registered and protected that trademark, protection that will also empower him to initiate the corresponding legal actions to protect his trademarks and consequently their products.
At present, the imperative need for all small, medium or large business owners PROTECT YOUR TRADEMARK through its registration in the corresponding legal entity is fully established.