Introduction
Trademarks are an exciting and complex subject that has been the subject of attention, like never before, by lawyers, economists, designers, marketers, advertisers, academics, businessmen and politicians, to name a few sectors in which, for different people, trademarks they constitute your occupation and concern.
Brands, universally recognized as means used by producers, distributors and service providers to identify their products and services are, in fact, the essence of competition because they make it possible to choose one of these, among the ever-increasing range of congeners in the market. They are used to differentiate products in the range of modern market structure in which companies concur by proliferating them. Once consumers have managed to remain faithful to a number of products from certain brands, companies can consider them as a source of market power because they ensure a clientele.
However, it is necessary to distinguish between the economic value and the legal value of a brand: all registered trademarks have the same legal value. The value of the registration is unlimited as long as they are renewed; instead, its commercial value and life expectancy are very different. In any set of legally equal marks, there are marks of different commercial values and of different “commercial ages” and “life expectancies”. That is why the role of constant vigilantes of the entrepreneurs on these intangible assets is so important. The attention they deserve will never be excessive as brands are valuable business assets.
Successful brands are also lucrative by supporting a variety of business operations that guarantee an unlimited stream of profits. It is no coincidence that they have become one of the most important strategic assets of large companies, and symbols of the success of the project market that their entrepreneurs have chosen. For example, as early as 1924 the Dodge brand was sold for automobiles for $ 74 million; At that same time, the Camel brand was evaluated for cigars at $ 10 million, while in 1967 the Coke and Coca-Cola brands for soft drinks were listed among the intangible assets of the Coca-Cola company with a value of 3 billion of dollars.
The illustrative data indicated above advocate the need for entrepreneurs to make, if not a portfolio of brands, at least one, in which efforts are concentrated. A good strategy will make it a strong brand and possibly the support of other business objectives. We should not see this as a phenomenon far from the Cuban business reality since we have several companies with brand strategies tempered to Cuban business conditions and that have yielded very good results, examples of which are the Cohiba brands to identify tobacco; Havana Club to identify rum; Cubita and Turquino both to identify coffee; among other.
However, this is not an easy process. The use of trademarks to market products requires an excellent knowledge of trademark legislation and practice at the national and international levels; It also requires the advice of professionals because it is a specialized job not only in legal matters, but also in market and design matters. Requires a certain investment.
To avoid excessive expenses and reduce the risks of deliberate and unauthorized use, it is important to register the trademark early so that it enjoys legal protection and cannot be used by third parties without the owner's consent. Some countries grant some degree of protection to unregistered trademarks, but in most cases protection depends on final registration.
The mere choice of a word or the simplest of designs in order to differentiate yourself from other brands for similar products or services on the market is not a random choice. Each one of these signs created or chosen for a brand involves a deep preliminary study that covers a large number of elements.
There are two basic pillars on which the brand creation or selection process is based, aimed at achieving, maintaining or increasing the positioning of products and services in different markets:
- correspondence with legal requirements established in Trademark Law. correspondence with marketing techniques.
Brand creation or selection process in companies: elements to consider in a brand strategy
Legal elements to be taken into account
Given that exports of products and services transcend borders and, therefore, national trademark laws, knowledge of the absolute bans and the most representative relative bans becomes an inescapable need for the contemporary entrepreneur, whenever It contributes to saving time and money by making the process of creating or selecting brands more rational and their adaptability to global or regional strategies.
Decree-Law No. 203 on Trademarks and Other Distinctive Signs dated December 24, 1999, and its Regulations dated May 22, 2000, currently govern the acquisition, exercise, maintenance and observance of the rights on “Trademarks and other distinctive signs ”. Articles 16.1 and 17.1 regulate the assumptions that can invalidate the registration of the brand, which can be summarized in absolute and relative prohibitions and that must be taken into account when conceiving or choosing a brand so that it is not vitiated.
Absolute prohibitions are inspired by general circumstances for which a sign cannot be registered, and relative prohibitions in those circumstances in which the use of a sign would affect a previous right that a third party has previously acquired or is in a state of application.
More general absolute prohibitions:
- Those that lack distinctive ability. Those that are made up of generic signs or signs that have become a generic or usual name for the product or service to be identified. Those that consist of a sign that describes or qualifies the product or service, or consists of one of its characteristics or an expression that praises the product.The usual or current forms of the product or those imposed on it by its nature, those that are imposed on it for technical reasons, or those that provide an advantage only in the functional or technical order to the product or service to which it is applied. Those that lead the public to false beliefs or errors about any characteristic of the product or service to which it is applied: geographical origin, nature, mode of manufacture of the products or provision of services,fitness for employment, among others. Color by itself. Those that reproduce or imitate in any way the shield, flag or other emblem, official sign, acronym or denomination of any State and international body, or of any public entity, without express authorization. Include the name of a protected plant variety if the sign is intended for products or services related to that variety. They are contrary to law, morality or good customs or violate public order. They consist exclusively of signs or indications that serve in commerce to designate the species, quality, quantity, destination, value, geographical origin, the time of production of the product or of the provision of the service and other characteristics of the product or service.Those that reproduce or imitate in any way the shield, flag or other emblem, official sign, acronym or denomination of any State and international body, or of any public entity, without the express authorization. Include the denomination of any protected plant variety if the sign is intended for products or services related to that variety. They are contrary to law, morality or good customs or violate public order. They consist exclusively of signs or indications that serve in trade to designate the species, quality, the quantity, destination, value, geographical origin, the time of production of the product or the provision of the service and other characteristics of the product or service.Those that reproduce or imitate in any way the shield, flag or other emblem, official sign, acronym or denomination of any State and international body, or of any public entity, without the express authorization. Include the denomination of any protected plant variety if the sign is intended for products or services related to that variety. They are contrary to law, morality or good customs or violate public order. They consist exclusively of signs or indications that serve in trade to designate the species, quality, the quantity, destination, value, geographical origin, the time of production of the product or the provision of the service and other characteristics of the product or service.acronym or name of any State and international body, or of any public entity, without the express authorization. Include the name of any protected plant variety if the sign is intended for products or services related to that variety. They are contrary to law, to morality or good customs or violate public order. They consist exclusively of signs or indications that serve in trade to designate the species, quality, quantity, destination, value, geographical origin, the time of production of the product or service provision and other characteristics of the product or service.acronym or name of any State and international body, or of any public entity, without the express authorization. Include the name of any protected plant variety if the sign is intended for products or services related to that variety. They are contrary to law, to morality or good customs or violate public order. They consist exclusively of signs or indications that serve in trade to designate the species, quality, quantity, destination, value, geographical origin, the time of production of the product or service provision and other characteristics of the product or service.They are contrary to the law, morality or good customs or violate public order. They consist exclusively of signs or indications that serve in trade to designate the species, quality, quantity, destination, value, provenance geographic, the time of production of the product or the provision of the service and other characteristics of the product or service.They are contrary to the law, morality or good customs or violate public order. They consist exclusively of signs or indications that serve in trade to designate the species, quality, quantity, destination, value, provenance geographic, the time of production of the product or the provision of the service and other characteristics of the product or service.
Unlike absolute prohibitions, there is only one relative prohibition and that consists in the collision of a sign with an earlier right. Which means that the new brand that is created cannot comply with any of the following assumptions:
- That the sign reproduces or imitates creations protected by an intellectual property right; That the sign has a direct relationship with a well-known brand that belongs to a third party, whatever the products or services to which it is applied, provided that the use of that A new trademark harms in any way that well-known trademark. The trademark harms rights inherent to the personality of a third party, unless there is express consent. That the registration of the trademark has been requested to facilitate an act of unfair competition.
Elements of application of Marketing techniques
- Brand identity
It is no less true that creating brands is an extremely complex task, but not impossible as evidenced by the gradual and sustained increase in brands at a contemporary global level, and more specifically in our country. One way to achieve success in this regard is to understand how to generate a brand identity. Brand identity must help establish a relationship between the brand and the customer, generating a value proposition that implies great benefits.
The brand identity must be active and look to the future, reflecting the associations to which the brand aspires. It must be strategic, evidencing a commercial strategy that will lead to a sustainable advantage.
A brand identity is to the brand strategy, what I intend to do strategically is a business strategy. In this sense, a brand identity must not be limited to accepting an existing perception, it must be willing to consider the generation of changes.
It should be noted that the value of a brand for a company is created, to a large extent, by the loyalty of the customer attracted by the brand identity and constitutes a measure of the consumer's commitment to the brand.
The challenge of each company and therefore of the identity of its brands is to improve the profile of brand loyalty. Therefore, the use of Marketing techniques should be directed to the development of efforts aimed at achieving the acceptability of a brand on the widest possible scale. It is worth noting that "acceptability" does not mean decisive preference, it means belonging to the repertoire of market brands or certain markets, therefore, the goal of each company should not necessarily be to convince consumers of brand superiority, but instead should make the brand minimally acceptable to as many consumers as possible.
- Market research
It is impossible to conceive the creation of a brand that we intend to be successful, or at least have a significant degree of acceptance within the public, if we do not carry out a detailed study of the environment in which it must operate. Furthermore, all the strategies we have discussed so far could not achieve their objective if they were not based on previous research that provides the elements of information on which they should be based.
A practical and feasible way for market research can be to approach this study from three different angles: an analysis of the customer, of the competitors and a self-analysis of the company and its brands.
People choose brands, as well as friends, by affinity. Likewise, consumers are suspicious of unknown brands as they are distrustful of unknown ones in general. Hence the importance of studying the public, finding out their character and tastes to endow products and services and their brands with attributes and a brand personality in accordance with the preferences of their potential users.
Customer analysis understands their trends, motivations, segmentation structure, and unmet needs.
A good way to start a customer analysis is to examine the dynamics of the market. What are the customer trends?
In this sense, one of the most important ideas to keep in mind is the continuous and rapid change of tastes and interests. Consumers are increasingly demanding. They are more educated, read more newspapers and magazines, watch more television, movies, listen to the radio, and travel more than previous generations. They also have more social relationships. Therefore, their demands are more demanding and their tastes vary more quickly.
It is also logical that if consumers are destined for the brand, any process of making a brand must take into account the sector of the public to which it will be destined, and with it their needs, preferences, trends and emotions. The socio-economic levels of the part of the public to which the brand will be directed must be investigated, because in addition to other factors (such as wants and needs) that influence a consumer's decision to buy, it is undeniable that power Purchasing plays a fundamental role. Therefore, the price of the product or service must be analyzed in close relation to the segment of the public that must purchase it.
Regarding competitors, it is required to know not only the current reality, but also the past and future, the location of their brand images and their positions, strengths and weaknesses; how customers perceive their brands, the attributes of their products, brand-customer relationships and brand personalities. These elements of information are key for the company in the search for distinctive approaches.
It is also useful to study the company itself through a self-analysis of the resources it has to create a brand that must differentiate its products or services from those of the competition, as well as for it to achieve an important place in the market.. It is very useful in this regard to determine the weaknesses of the product or service that has to be designated with the new brand. For this, it must be taken into account that it would be a waste to try to develop an identity that cannot be supported in the market, or that the product or service could not support.
Market research ranges from the survey and its detailed study to the production of statistics to analyze trends in user consumption. The social sciences (psychology, sociology) are also used to analyze user behaviors.
In everything stated at this point, it can be concluded that prior to taking advantage of the opportunities offered by the market, you must first know how to identify them to focus the objectives of the company, what is desired with the new brand in a design project.
- Minimum basic requirements in brand design
Most of the signs destined to act as trademarks and that are born for the law fail from the beginning, not only because legal considerations have not been taken into account as we saw before, or because they have not obeyed defined commercial strategies, but also because in most cases certain practical matters go unnoticed that decisively influence the acceptance that consumers show of a brand product. These factors or characteristics are not in any way mandatory, but in practice, if you want to be successful in creating brands, they should be taken into account since they constitute a set of minimum and basic requirements from the point of view of design., which obey perspectives of the psychological profile of consumers.
Requirements
- Laconic, simple and practical
- Sustainable aesthetic and sound quality
- Information capacity
- Unique and consistent image
- Flexible
- memorable
- Laconic, Simple and practical
A laconic brand, or what is the same brief, is always more comfortable for the contemporary consumer who generally has little time to dedicate to the observation and recognition in markets with various similar products. A short brand will more easily and quickly attract consumer attention. For example, the brands LUX for soaps, Stained glass for paints, 7 UP for soft drinks, SEDAL for beauty articles, etc. stand out. The public's preference for short brands is demonstrated by the fact that the Coca Cola Company adopted the use of the Coke brand from the public.
Simplicity must be when writing and pronouncing the word or phrase. Considerations such as these are engraved in the consumer's mind, a clear and easily pronounced term will be understood by all kinds of audiences, from the most professional to the least cultural level. The same happens with writing, a brand that is easy to understand and simple in this sense, helps the development of the consumer's familiarization process with the sign that it must recognize as belonging to a product or service that it may become of its choice..
- Sustainable aesthetic and sound quality
A denomination, that is to say, a name, can express various ideas and can transmit certain information to the public, but if a brand also has a design (mixed brand), through it the company can increase the scope, with greater clarity, of those elements that the consumer needs to transmit in order for them to form a criterion on the product or service that the brand carries and to recognize and identify it from their peers.
Coloring is an important element in this regard. In general, it is easier within the elements of a brand to remember its colors. As an example we can resort to the combination of white and red colors that Coca Cola uses, which for a large majority of consumers is easy to remember due to its design. In this sense, it is necessary to take into account the correct use of the color range. Many well-known brands are distinguished by the correct combination of colors, which reinforce their capacity for distinction and recognition by imparting a personal stamp.
- Information capacity
Trademarks must have a certain informative capacity about the product or service without becoming a generic name or referring to a quality of the article. They must provide elements that make the consumer acquire brand information, either on the class of the product, on its attributes, intended users, geographic area, or other factors.
- Unique and consistent image
It is worthless to have an excellent image or an outstanding name, that goes according to the values that you want to express, if it looks very similar to someone else's. The brand name must give the product distinction, differentiate it from its counterparts in the market. In this way, the distinctive element of a brand is reflected, but in this case it allows you to express your own personality, differentiating it from other products with a similar image.
- Flexible
This quality means that it must not only fit in with the brand's central guidelines, but also with new products or line extensions. The products or services distinguished by the marks can change or become obsolete, but the marks do not, because they are independent of the former, which allows them to be adapted to improved products or services. Therefore, the brand must be moldable for any type of product or service, because if the company decides to extend its marketing area, it does not run the risk of having to devise a new one because the old one does not adapt to the new product.
- memorable
If we consider the above elements in the process of creating a brand, there will be a high probability that the resulting brand will be memorable. It must be tried by various means that the brand has an anchor of elemental associations such that it allows the consumer, without extraordinary efforts, to make a place for the brand in its memory.
Conclusions
The new international economic order characterized, among other factors, by the internationalization and hyper-competitiveness of the markets constitutes a challenge for Cuban state business organizations, as small companies that are, especially if one takes into account that in this war for the markets They are always fighting giants in almost all sectors of capital goods, intermediate goods and consumer goods.
In this fight for markets, brands have become valuable business assets as factors of competitiveness.
From the constant inspections carried out on Cuban companies, it is evident that the national business does not have the necessary culture in the field of Industrial Property and, in particular, in the knowledge on the field of trademarks. Although notable progress has been made in some segments of the service sector since the boom in foreign investment in the tourism sector, and despite the fact that our country has reputable brands, with roots and tradition, which are therefore In the current business base, it is necessary that the knowledge on this discipline of law be incorporated into the corporate cultural heritage.
Although the creation of brands as a creative process requires, fundamentally, the deployment of a wealth of knowledge in various disciplines, it is no less true that it involves publication costs, and it is not easy for our businessmen, for various reasons whose explanation exceeds the objective of this article, to know in advance the markets that you can access. All this leads us to perceive that state business organizations must make a path as they strive, without reducing rigor, to adapt to their realities the necessary stages in a process of brand creation.
The Bases for Business Improvement constitute a guide for the qualitative and quantitative transformation of the work of state companies. In these Bases, Industrial Property in general, and brands in particular, constitute spheres to which not only attention should be directed, but also actions directed to their proper and timely use, which must allow business organizations to create their intangible assets, trademarks among them and act in a disciplined manner in the markets in accordance with the standards established in trademark law for these purposes.
The publication of this article should be taken advantage of, since it constitutes a favorable occasion not only for the companies that begin their transformation towards improvement, to establish an internal regime, through their own regulations, in order to properly order and conduct the brand creation process, but also for those companies that do not have a successful brand strategy to start with such an exciting but complex task.
Bibliography
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