Summary
Industrial Property as a protector of the country's economic and commercial interests, plays a role of exchange of the market and within these, the brands, since they allow the client to identify, distinguish or differentiate some products or services from others, according to the quality and utility of these in the market. Due to the new changes that have been introduced in our economy as a result of Cuba's insertion in International Trade, the effective guarantee of the entrepreneur in commercial traffic is required. In the guidelines of the Economic Policy of our country, the updating of the Cuban economic model is proposed to ensure that the country's business system is made up of efficient and well-organized companies.With the present work, it is proposed to demonstrate that the brand has acquired a great impact, becoming an essential element of the marketing strategies of companies, which is why the entrepreneur, in addition to producing, must be concerned with the sign that would distinguish their products from their competitors. in the market, since it constitutes an irreplaceable instrument of communication between those who produce a good or provide a service and those who consume it.because it constitutes an irreplaceable instrument of communication between those who produce a good or provide a service and those who consume it.because it constitutes an irreplaceable instrument of communication between those who produce a good or provide a service and those who consume it.
In the guidelines of the Economic Policy of our country, the updating of the Cuban economic model is proposed to ensure that the country's business system is made up of efficient, well-organized and effective companies. Undoubtedly in the economic field, brands as immaterial goods objects of industrial property have played a preponderant role in commercial legal relations as the basis of business competition and source of obtaining returns or profits in considerable numbers.
Currently, the brand has acquired a great impact, becoming an essential element of the companies' marketing strategies, which is why the entrepreneur, in addition to producing, must be concerned with the sign that would distinguish their products from their competitors in the market. It constitutes an irreplaceable instrument of communication between those who produce a good or provide a service and those who consume it.
The Brand is defined, from the etymological point of view, as a sign made on a person, animal or thing to distinguish it from another, or denote quality or belonging, in Spanish means the action of marking
Despite the fact that there is no uniform definition by all of the writers, they agree that the brand must distinguish and differentiate certain products or services from others similar in the market that belong to other people, which evidences the recognition of the existence of a close relationship between the brand and what it identifies.
Similar criterion protects the Cuban legal system in article 2, subsection of Decree Law 203, when defining the brand as any sign or combination of signs that serves to distinguish products or services in the market.
According to what is established in the aforementioned Legal Body, word signs, figurative signs, three-dimensional shapes may constitute trademarks, provided that they can be delimited from the product, odors, sounds, as well as color provided that it is delimited by a certain form and the combination of these, also the names of specific people whenever an express authorization is given in this regard, is stated in article 3 of Decree Law 203 of 1999.
Brands make it easy for consumers to identify products and services. They also assure buyers that they are obtaining comparable quality when they repeat the purchase, thereby deriving its importance for trade.
Especially in the foreign investment sector they play a key role in the negotiation of a mixed company since an important capital contribution for Cuban entrepreneurs could be precisely a certain brand with a certain national and international reputation, it is worth noting that the strategy in these cases It will be aimed at preserving the ownership of the trademark registry in favor of the Cuban side.
The brands through their permanence in the trade have acquired new functions that add to their identifying and distinctive function. These new functions are linked to a plurality of protected interests, namely, those of the brand owner, consumers, the competitor and the state's own public interest, thus the following appear as fundamental.
Indicate the business origin of the products. In this case, the brand performs an informative role by serving the public as guarantor of the origin of the products it consumes. It works for the company as a seal that ensures that the product comes from that company and not from another. This is undoubtedly the primary and fundamental function of the brand, which is directly supported by consumer reactions and is immediately based on the structure of trademark law.
Indicate the quality of products and services. The brand acts as an indicator of the quality of the products, it will offer the consumer the guarantee that all the products or services identified by it will always have the same quality, whether good or bad. Therefore, it constitutes a quality commitment to the consumer and holds the manufacturer responsible for it.
Condense the Goodwill or the reputation of the products or services. Regarding this function, the Goodwill condenser, it should be noted that it is the good reputation, reputation or preference of the public regarding the products or services differentiated through a brand. In this sense, after buying a product, the reputation of the product begins, so if a brand has a high quality, a good reputation will be produced. On the subject, Fernández Novoa points out that it is necessary to point out that this function has singular importance in the case of the renowned brand, which is that type of brand that is characterized by having increased prestige.
Operate as a means of advertising products or services. The last of the functions, the Advertising one is the one that the brand itself carries out, since it induces the buyer to select what he wants, constituting a means to create and perpetuate good reputation. Each and every one of these functions are interrelated with the strategy of the companies, therefore we can affirm that without the distinctive signs it is not possible in the current reality, neither the competition, nor the market economy.
Trademarks are considered a valuable asset of companies and the potential value of the right on the trademark must be weighed, which guarantees the exclusivity of its use in commerce.
The trademark right consists of those legal powers or prerogatives that are recognized in favor of the owner of the sign in question. According to the prevailing legal system, trademark law can be obtained through priority use in commerce (declarative system of rights, adopted in countries belonging to the Anglo-Saxon system), through its registration in public offices for this purpose (attributive system of right) or by combining registration and use for certain signs, such as well-known and renowned trademarks, which are recognized for their economic relevance (mixed protection system). This last system is the one that has achieved the greatest adherents in the international framework, being accepted by the Cuban legal system.
In this sense, the registration of the trademark is the only means that guarantees the owner the exclusivity in the use of it and the possibility of excluding anyone who tries to take advantage of their property, being entitled to act against any violator of their right and to oppose a later mark.
Due to the territorial nature of protection, it is necessary to guarantee the prior registration of the mark in all countries where there is an interest in exporting the products and even though there is no current interest in a market, the policies of cautious companies take care to register the sign in safe and stable markets, without waiting for them to be known to proceed to their protection, since the delay can lead to unnecessary risks and losses. The export of products without a protected brand should be avoided, since in the world market these are considered of dubious quality.
Failure to register the trademark due to how expensive the concession procedure can be, is not comparable to the dire consequences that may result: loss of the trademark by previously having been registered by another owner, loss of markets, expenses in litigation for infringement of rights registration, economic losses due to compliance with sanctions (seizure of products, payment of compensation to the owner and prohibition of use) and the possibility that the owner company appropriates the credit acquired by the first user.
Trademark law has a territorial dimension, governed by the legal norms of the State that grants protection, which results in identical marks in the name of different owners in different territories coexisting. In this sense, practice has shown that the strict application of territoriality can lead to abuse, which results in injuries to the brand owner and fraud against the consumer. It can cause someone to take advantage of the fact that a trademark used in the country or abroad has not been registered, to apply for it and enjoy the celebrity of the sign.
This is one of the manifestations of what is now known in commerce as legal piracy. That is why this general principle has been nuanced by the new conditions in which world trade operates, by the widespread use and advertising that surrounds well-known and renowned brands, as well as by new community and regional trends that unify the market.
Trademark law is also initially granted for a short period of validity, which may not be less than 7 years as required by the TRIPS Agreement. But since the trademark has a vocation of permanence over time and a tendency to strengthen itself legally and economically with its continued use, the possibility of indefinitely renewing the registration is established in the legislation.
The repeated use of the trademark sign represents its solidification and enrichment, since the more it is used the greater distinctive capacity it will acquire and increase its value in the same way. As the sign is used and disseminated in economic traffic, the brand formation process is consolidated and its union with the goods or services will be appreciated with great force by the public of consumers who go to the commercial sector to which those goods belong., reaching in many cases a huge reputation, unless it becomes generic.
Brands are currently the most valuable asset within companies and are gaining more and more strength as a fundamental element in negotiations based on their usefulness in identifying and differentiating their products.
Because of this, companies must protect these assets against violative behavior that violates such rights. A fundamental challenge for companies lies in finding appropriate strategies to prevent the infringement of their trademark rights, detect possible infringements that cannot be prevented as soon as possible and deal with infringement cases correctly, at the right time.
Cuban companies that have brands among their intangible assets do not escape this challenge. As key players in trade in the country, they are constantly exposed to infringements at the national and international levels. The legal protection of the rights acquired by virtue of the ownership of a trademark has been gradually increasing in Cuban legislation, due in large part to the membership of Cuba in various international organizations such as the World Industrial Property Organization and the World Organization of the Commerce.
To determine that an infringement of trademark rights has taken place, certain conditions must be taken into account that must be fulfilled in relation to the use of the trademark and its ability to distinguish products or services in the market. The use of the brand is of singular importance for the exercise of the powers of defense, for this reason it is important to distinguish that it is not just any use, but rather that which is made in economic traffic and as a brand. An important element in this aspect is the so-called risk of confusion or association, which constitutes the core of the iusprohibendi, based on which it is stated that confusion is precisely the typical or common element of the vast majority of offenses.
The coexistence in the market of confusing brands not only hurts the owner of the brand who may lose customers or be affected by its prestige, but also the consuming public that buys what it really did not want to buy. We can mention among the main infringements of the Trademark Law the usurpation, imitation and counterfeiting.
With respect to the infractions to the exclusive right, the doctrine distinguishes between infractions and crimes. In the group of infractions it includes those that require civil or administrative actions. The group of crimes includes behaviors that, according to the intentional element, require a criminal sanction. In the author's opinion, such a distinction when contemplating infringements of industrial property rights, specifically trademark rights, is irrelevant, because although it is criminal offenses or administrative offenses, what is of interest is the injury or violation of the exclusive right.
The current transformations in our economy were not the work of improvisation, but the result of the analysis made by the country's leadership, with the aim that the economy could break through towards recovery and efficiency in the real conditions of today. That is why at the VI Congress of the PCC, it was agreed to approve the guidelines that govern this new economic and social policy of the country in order to achieve a national economy in an orderly, programmed, comprehensive, gradual and systematic way, always taking into account the characteristics of each activity.
As a result of the lines drawn regarding the rectification of errors and the changes introduced in the state and private economic administration in order to revive and energize national economic management, self-employed workers have emerged who have acquired vital importance in our country. Due to its use as an alternative, to provide employment to hundreds of available workers, to enhance the economic growth of our country and, to contribute to shortening the differentiation gap between workers in state companies and this new system of property, we are carrying out this analysis in our work.
This type of cooperatives and Cuban state companies neglect trademark activity instead of considering it the strategic key to success and durability in the market. Interest in trademarks in self-employment activity, its usefulness, study, and understanding for its use is still very low.
In this context, the use of opportunities offered by brands as a communication link par excellence between non-agricultural cooperatives (made up of a small group of people) and the public is not conceived as an element that induces the consumer to the purchase.
Cuban tobacco, rum, culinary culture, our wines, crafts, etc. are values transmitted by brands as multi-dimensional elements. The package of satisfactions that Cuban self-employed people can offer, with touches of ancient traditions and culture, would be sold, enhanced and preserved with proper brand management.
These distinctive signs bring emotional benefits to consumers, they are comforted by their use and in many cases transmit spirituality. What better way for Cuban self-employed than to use brands to express who we are, how we think and the values we have?
Brand management is increasing and perfecting rapidly in view of the high competitiveness of both physical and virtual markets. Companies face more and more challenges to guarantee a leadership position in a short time and in the case of our companies and cooperatives with the limited budget available to them.
The globalization that the world is experiencing in all spheres constitutes a challenge and an opportunity not only for companies but also for this sector of our society. The integrationist processes that have developed in the region and some feasible bilateral agreements must insert brands as a means to overcome the territorial barriers of our countries and penetrate new markets.
Global trade in intangible goods is perceived to increase. Trademarks, as an object of property, constitute a sector of merchandise within merchandise and also in isolation. They are involved in Technology Transfer contracts, in Economic Associations and Joint Ventures. They are bought and sold, they are partially transferred for use and exploitation, they are subject to mortgages and insurance contracts. Its participation as an incorporeal good subject to economic valuation in multiple negotiations is evident, therefore they deserve special attention.
It is important for any type of company that its workers feel identified with brand management and each one of them from their role will feel responsible for it at the same time that they will handle brand information with greater skill in order to enhance its value. For our companies and cooperatives, it is advantageous to use less cumbersome, feasible methods and means of protection that promote speed and uniformity in trademark protection. For example, brand loyalty as a quality provides the company with a high flow of sales and profits that would allow entrepreneurs and self-employed workers to support its stability. Loyal customers cost the entrepreneur less and provide more than new ones, who often do not fully enjoy all the services or products offered,for the fears of the first approach.
In many cases, the irregularities that our companies have presented in the matter and that in the future must coincide with the self-employed are due to the low consultation of the trademark information and the little knowledge of the representatives and managers on Trademark Law and its significance to trade. For the same reasons, they have few skills for foreign trade. In turn, they do not carry out market studies, nor do they draw up effective marketing strategies. Sometimes there have been mistakes due to mishandling of the brands in the negotiations. It is essential for our companies to care for immaterial goods of such importance, since good brand management linked to these processes often favors negotiations. Brand stability provides the company with peculiar economic values,It facilitates a better brand effect in the market and reinforces its capacity within business.
In our country, which updates and revolutionizes its current economic model, it is a priority to encourage these companies to effectively use Industrial Property systems. For years, WIPO has developed a successful program to help our companies to increase their competitiveness through the effective use of the Industrial Property system.
It is important to revolutionize national laws on Industrial Property, especially on trademarks. It is crucial that trademark laws are revolutionary and do not in themselves constitute a brake on the development of companies and commercial relations. The current economic system needs pronouncements and not only that they exist but also reach the managers of these companies and cooperatives and, in turn, these rules require mechanisms that in practice allow their transparent, clear application and in a harmonious legislative environment.
Conclusions
Brands as multidimensional signs transmit the cultural, human and natural values of our country with unique riches in the world, facing today's challenges with greater ease. The appearance of these in Cuban companies and cooperatives in any association, alliance, or legal business facilitates their positioning in the market and enhances economic development.
We can affirm through this research that the proper selection of brands reinforces the sales power of Cuban companies and non-agricultural cooperatives, reducing unnecessary expenses, as well as the control, monitoring and protection of brands through the most comfortable and Legally safe avoids monetary losses to our companies, cooperatives and the country.
recommendations
It is urgent to create public policies to promote and help companies and cooperatives and to assist in the use of Industrial Property systems in general and brands in particular, where legal advice plays an active role. Likewise, the promotion of an adequate culture of Industrial Property in non-agricultural companies and cooperatives should be prioritized to guarantee that new and improved products are projected on the market with an adequate and protected brand.
Bibliography
- CITMA Ministerial Resolution No. 21 of 2002. Decree Law 305 of 2012.Otamendi Jorge (2003) Trademark Law Díaz Martínez Pedro, 1916. Trademarks and patents, industrial designs in the Republic of Cuba. La Habana, saFernández Novoa Carlos (2004) Trademark Law Treaty, Pérez de la Cruz Antonio, 2001, Industrial Property, general theory, distinctive signs in progress Mercantile Law, Spain, Civitas, SADecreto Law 203 on Trademarks and Other distinctive signs of December 24, 1999. Cuba. Council of State published in Extraordinary Official Gazette No. 3 of May 2, 200.0 Guidelines for Economic Policy, approved within the framework of the VI Congress of the Communist Party of Cuba on April 18, 2011. No. 07.
