Marks are visible signs, composed of words, symbols, figures or three-dimensional shapes in general, although there are marks that are not visually perceptible (olfactory and sound); The brands will always be linked to certain products and services, together with the employer, with the fundamental objective of differentiating it from the same or similar in the market, the brands are considered as a good of an independent nature, their own and therefore capable of being transmitted.
To select a brand correctly, it is necessary to maintain the observance of certain elements and characteristics that make it distinctive or differentiating the products or services in line with market trends, together with the intrinsic qualities of the product, as well as the particularities of the public to which they are directed, on the basis of the political and moral approach in which it is, considering the place where it is intended to provide or commercialize such products and services respectively.
Trademarks must be composed of a simple pronunciation, which does not presuppose space or time, being consistent with moral or ethical standards, so special attention must be paid to the language in which the trademark is to be established, in Therefore, it should not be a name that is contrary to the formal patterns of conduct of the territory in which the products will be advertised and commercialized under that distinctive sign, while respecting the precepts contained in the legislation.
Brands have among their functions to be:
* Distinctive or differentiating products or services.
* Indicators of origin or provenance.
* Indicates quality (since it is what will give a tangible value to the brand) (in addition, this also protects the consumer since it helps in the selection of products, based on their quality in the market).
* Advertising function, as they are a means of advertising par excellence since through them a link can be established between the brands and the products, familiarizing the consumer with them.
Entrepreneurs or entities dedicated to trade must consider aspects related to the national and international market since these are the ones that will determine the acceptance of the product by the consumer.
The importance of trademark registration lies in the fact that it is only in this way that exclusive rights are granted to the owner of the sign, which include:
* The commercial exploitation of the brand from its placement on the market and with it the successive sale or distribution of the products or services that are intended to be protected by that distinctive sign.
* The import and export, storage and transportation of the products that will be protected under that sign.
* The use of the distinctive sign to advertise or as a means of advertising products or services.
Another aspect is related to some of the prohibitions on the registration of trademarks contained in the current legal system, Decree-Law 203 “On Trademarks and Other Distinctive Signs”.
Initially, we count on the fact that the trademarks that are the object of the application for registration must have full registration capacity and thus be in line with what is regulated by the legislation on this matter, maintaining the observance of the Absolute and Relative Prohibitions established therein.
* Trademarks must have features that make it distinctive, that differentiate it from the rest of the signs found on the market for the same or similar products.
* The sign that is intended to be registered should not be a common or generic name, nor should it refer to products or services directly.
* It is also configured as a prohibition that the trademark constitutes a description or qualification of the product or service to be protected by it or consists of a laudatory expression.
* The sign must not mislead the consumer about the geographical origin, nature or manner of manufacture of the products or provision of services that are to be protected in the market.
The same are the Relative Prohibitions accepted by the current Decree-Law on Trademarks, which appeal to the subjective appreciation of the specialist in the substantive examination of the trademark.
Among the most frequent Relative Prohibitions incurred by Legal or Natural Persons when they file the application for the registration of trademarks, we have that:
* The request for a sign similar or identical to a registered or registered trademark for identical or similar products or services, which may cause risk of confusion or association.
* Sometimes the trademark that is the subject of the registration application is composed in its word part by a language in which its translation in the territory where the registration is intended is the same or identical to a trademark already registered or under registration or to a notorious trademark, which may cause a risk of confusion or association.
* The sign contains in its composition the name of a protected geographical indication in the country, applying this to the same products, and may also cause risk of confusion or association.
* Another contained prohibition is when the sign that is intended to be registered infringes a copyright.
To finalize the substantive examination, the examiner must take into consideration that the trademark that is the subject of the registration application does not incur any of the prohibitions contained in the current legislation, conducting searches for interference in the different national databases, as well as WIPO Gazettes of International Trademarks.
Establishing the comparison of the sign and determining if it complies with all the requirements that a trademark must have in order for it to be registered a posteriori and thus that exclusive rights can be held by the owner.
Bibliography
Fernández-Nóvoa. Carlos, Treaty on Trademark Law. 2nd edition, Ed. Marcial Pons, Madrid, 2004.
Module 1 and 2 on Trademarks of the DL 101 Intellectual Property Course of the Academy of the World Intellectual Property Organization (WIPO).
Distance Learning Course entitled "TRADEMARK MANAGEMENT AND EVALUATION Ed. 4" from the CEDDET Foundation of the Spanish Patent and Trademark Office.
Cuban Legislation
Decree-Law Nº. 203 of December 24, 1999, called On Trademarks and Other Distinctive Signs.
Foreign Legislation
Convention of the Paris Union for the Protection of Industrial Protection signed in Washington in 1911.
Trademarks and Other Distinctive Signs Law No. 7978 of Costa Rica.
Law 17/2001 of December 7, on Trademarks, Spain.
Decision 486 of the Commission of the Andean Community.
