Brands are protected by a variety of laws –laws on copyrights, trademarks and other intellectual property considerations. If a brand becomes a common household word, it is a hazardous situation. As building a brand requires a heavy investment, it is necessary to make careful plans to protect it.
Generic Brands
A too powerful brand does not augur well for the company as it is likely to become generic, , and loses trade mark protection. Thus Nylon, Escalator, Aspirin and Cellophone have lost their brand character. Others like Xerox, Kleenex and Scotch are too close to becoming generics.
Infringement
Registered brands get legal protection. Products are patented, and also get legal protection.Products are patented, and also get legal protection. Since brands are intellectual property, we should understand what infringement of intellectual property means.
Trademarks
Trademark protection is very common in most of the countries. They are words, names, symbols or icons used by creators and sellers of goods and services to identify them and to distinguish them from those made and sold by others.
India has trade mark registration legislation. A trademark that merely describes a product category, say PC, cannot be protected. It must be a distinguishing symbol, say HP computers. A trademark that is similar to one already in use and that which likely to cause confusion or mistake cannot be protected by registration. Though trademark office makes its own search for finding such similarities, a company must perform its own search.
Trade-mark laws give the owner exclusive rights to use the trademark. The owner can obtain injunctions against confusing trademarks used by infringers and can collect damages for infringement.
A trademark registration can be challenged initially if there is another user who can prove its usage by him widely over a period of time.
Copyright Law
Brands are not protected by copyright laws, but these can be used to protect ads and package designs when trade mark protection is not available.A copyright owner has the following exclusive rights–
- right to reproduce
- right to distribute copies of the work
- right to public performance
- right to public display
- right to modification
If copyrights are violated, it is called infringement.
Brand literature and manuals are protected by copyrights.
The term of copyrights is the life of the of the author plus 50 years. Copyright is generally owned by the person who created the work. However, if the work is created by an employee as a part of employment, the employer owns the copyright.
Patents
When inventions and processes are patented, it is called utility patents. When designs are protected, it is called design patents. A patent holder can exclude others from making, using or selling the patented invention/design during the term of the patent. Any breach without the permission of the patent holder is an infringement. Once an item goes off patent, it can be made, used and sold by anyone.
Use of a Brand Name
A brand name should be used just like a brand name.If we use it like a noun or verb, there is a danger of losing it ( we have to say, get the document photocopied, rather than get it xeroxed ). Once the brand name becomes generic, we will not be able to protect it. Even while choosing a brand name , a distinctive name should be chosen, rather than a name like Super Glue or Windsurfer which are difficult to protect.
Litigation
If someone appropriates the brand name to usurp its reputation, one has to fight in a court of law by engaging a competent trademark and patent attorney.