Currently in the field of Trademark Law, the main theoretical discussions focus on issues related to the protection of non-traditional trademarks such as olfactory, sound, dactile, the controversial issue of the Agent's Brand, the dichotomy between Private Labels and the national brands and even the best methods for the valuation of brands, but little mention is made of the issues related to the selection of brands for computer products, being in itself an intellectual creation, in this case to identify works also conceived as intangible assets.
Therefore, it should be important and necessary that business strategies analyze how to implement a trademark policy for the Software products that are generated, susceptible to commercialization, taking into account the rise of ICTs, even being a complex field considering that intellectual creations are part of the assets of a business organization, that we are faced with the fact of identifying intangible assets that can be marketed through communication networks and that in structuring strategies for the competition of said products, we must think about that the final recipients have at least average levels of knowledge, being therefore a potential and objectively different consumer audience.
P alabras Keys: Trademarks, Software Products, Technology I nformation and Communications.
A bstract
Currently in the field of trademark law, the main theoretical discussions focus on issues related to the protection of non-traditional marks such as smell, the sound, the dactyls, the controversial issue of Agent Brand, the dichotomy between store brands and National brands and even the best methods for the valuation of brands, but little mention of issues related to the selection of brands for computer products, being in itself an intellectual creation, in this case to identify works also designed as intangibles. Therefore, you must be important and necessary business strategies is how to analyze policy impacts trademark for software products that are generated, easily marketable, taking into account the growth of ICT, despite being a complex area considering that intellectual creations are part of the assets of a business organization, we are facing the fact of identifying intangible assets that can be marketed through communication networks and in the structuring of competitive strategies of these products,one must consider that the recipients have at least average levels of knowledge, making it a potential consumer groups and objectives. Keywords: Trademarks, Software Products, Industrial Property.
I ntroduction
Carrying out an analysis on Intellectual Property Law, in any of its fields, say Copyright and Associated Related Rights, as well as Industrial Property Rights, is difficult in the context of Neoliberal Globalization, given the so-called “Digital Era or the Internet ”and even more so when the development of Information and Communication Technologies (ICTs) generates new problems related to the rights over intangible assets and consumers, the final links in their marketing chain.
Given the global panorama in this regard, it is vitally important to take into account the protection of rights over intellectual creations that ultimately generate intangible assets that can be disclosed and marketed, given the mix of economic factors such as the resurgence of competition global and even political as the increased interests of developed capitalist countries to reach the top of the World Economy.
From this, the rest of the conduct that violates the rights is generated not only at the State level, but also by the simple author who, in view of the desire for his creation to be known and to be able to exploit it accordingly, finds on the other hand, that there are no sufficient mechanisms, neither legislative nor practical, capable of preventing their rights from being fully protected.
Although, to a large extent, social and economic development depends on the use of technologies and more on the policies around their inclusion and application in all sectors of society, the fact of devising strategies capable of adhering such technologies as A natural element of the production processes or the commercialization of products, for example, it gains greater value and importance in order to obtain better levels of efficiency and increase the economic benefits of producers, marketers, in turn if they contribute to achieve a fair balance between the interests of these and of the final consumers, much better.
However, faced with the problem, at least partial solutions are found in the national and international laws that protect this branch of Law today, but the new intellectual creations such as computer products, which contain dissimilar components and elements, still lack in-depth analysis theoretical, empirical and even legislative, with the absence of sufficient regulations to protect these very new forms of expression of intellectual works, which in turn also change themselves and are in constant and ascending transformation.
In terms of Trademark Law, the main theoretical discussions focus on issues related to the protection of non-traditional trademarks such as olfactory, sound, dactile, the controversial issue of the Agent's Trademark, the dichotomy between Private Labels and the national brands and even the different methods for the valuation of brands, but little mention is made of the issues related to the selection of brands for computer products, being in itself an intellectual creation, in this case to identify works also conceived as goods immaterial.
The commercialization of computer solutions, mainly through virtual networks, given their very nature, generates the need to identify and protect the rights that authors have over them and moreover to identify them from other products in the complex world of the product market of consumption, with the distinction that this consumption can be achieved in the physical world, if they are fixed on a medium or virtually through the Internet.
Therefore, it is prudent for business strategies to analyze how to implement a trademark policy for the Software products that are generated, susceptible to commercialization, taking into account the rise of ICTs, even being a complex field, considering that the Intellectual creations are part of the assets of a business organization, which also gives the need to identify those intangible assets that can be marketed through communication networks and that in structuring strategies for the competition of said products, it is necessary to think about that the final recipients have at least average levels of knowledge, being therefore a potential and objectively different consumer audience.
M
Before any analysis that is intended to be given on the definition and functions of trademarks, the concept that exists regarding its nature and essential function must be mentioned, insofar as it is nothing more than “a sign that distinguishes one product from another or a service of another ”1, conceptualized as“ any sign or combination of signs that serve to distinguish products or services from their similar ones in the market ”2 in our Positive Law.
Another classification that is not even mentioned in the very conceptualization of the legal nature of the brand, is that of product brands and service brands, logically distinguishable and that for others in practice and in both national and international regulatory bodies They enjoy equal protection, so their differences are basically centered on the object itself, whether it is material or immaterial, that they identify.
But little is mentioned in the basically trademark legal doctrine, regarding the selection of trademarks for computer products, referring specifically to Software (intangible by its nature) and identified from among many conceptualizations as - “Any sequence of instructions or indications intended to be used directly or indirectly in an automated reading device, computer or electronic device or similar with a capacity to process information to carry out a function or task ”3.
This is due to several reasons, among them, that the subject has acquired greater relevance from the development of ICTs in all its dimensions, an issue that is not brand new, but rather a consequence of greater access to the Internet and the complex international relations generated in the Digital environment. In addition, in practice, with regard to the commercialization of this type of products, what generally interests end consumers the most is not the software itself, but the services provided in addition to the maintenance and support of the systems, thus perhaps leaving the question of brand selection for an IT solution at a lower level.
Regardless of the fact that some consider that analyzing this issue is purely to repeatedly apply trademark aspects to IT solutions, the policy of selecting a distinctive sign for this type of product is a necessary and recurring issue if we take into account that even though they constitute Intangible goods, it is also possible to associate with them all the related aspects of the trademark issue, such as (the quality of the associated product, Goodwill, even the so-called TradeDress) and more if you want to achieve business success.
Therefore, it is considered opportune and wise to investigate in this sense and without pretending to create pure doctrine, to reach a result that allows everyone to understand the need to create, implement and regulate the subject in question.
C
Neither at the national level, nor at the international level in the legislative field, is it possible to find legal norms that define, clarify or establish something related to what is understood by the policy of selection of brands for computer products.
Generally, the laws that deal with ICT issues refer mostly to defining what is understood by Software, Databases and other terms, not even achieving a uniform concept on other computer products such as Multimedia, there are also those loosely related with the relationship of Copyright and ICTs, how to deal with the issue of Digital Signatures, Computer Security, a recurring theme worldwide, the CyberNotary, to name a few.
In our country, we are not alien to these issues and this is evidenced not only by the national policies that have been drawn up in this regard due to the computerization of our society itself, but the legislative creation of legal norms that have laid the foundations on some important points such as It is Computer Security, there is not yet any regulation related to the issue in question, or policy in this regard aimed at tempering the Law to the new conditions imposed by the digital environment.
With the development of ICTs, the creations of computer solutions are increasingly varied and complex, in many cases even repetitive, from the possible reuse of certain tools or components of a Software, further with the tendency to the freedom of copies based on the Free Software policies.
With this, the creators are not only faced with the controversies that computer programs that enter commercial traffic are pirated, but also that they are plagiarized and then the process of selecting a distinctive sign that jointly achieves the functions becomes more complex. of a trademark, beyond the intrinsic need for the manufacturer to be identified in products of this nature or rather we name the author of said intangible good and even without making references with said sign to qualities or properties of the product in question.
It is that in the case of computer solutions4, which can well be marketed through the Internet, without there being any physical operation in the supply chain, without forgetting everything that the trade of intangibles implies and more given the “variable and progressive” nature 5 of This type of product, all this can lead to several problematic situations such as the fact that the holders of rights cannot defend themselves against online violations of the same and the incongruity in relation to the trademark registration procedures, more if not a selection policy based on these fundamentals is applied.
It generally happens that in the creation of computer products, the (Hardware) is inextricably linked to the computer solution (Software) that integrates it and large companies manage to associate the brands of all their physical products with the technology they create, so that the user, for example, is going to buy a NOKIA brand mobile because he knows that the technology that is incorporated in its pieces is the latest generation or he knows that it is of quality due to the experience of other users with products offered by the same company that owns the brand, but does the client or end consumer wonder if the ownership of the Software incorporated in it is really of the company that owns the brand or was one created from the reuse of codes from other Software whose ownership does not belong to them,which in turn is more functional and will allow you to do more operations from an operational point of view?
Could we not identify and say I buy this mobile because the Software that it has is owned by the owner X by its brand?
It is clear that it is, although commercial practice is much more complex considering that entrepreneurs join forces to extend their business networks in all directions, which implies the drafting of commercial agreements and contracts with particular clauses between them, where almost Issues related to distinctive signs on its products and / or services are always foreseen.
In order for an end consumer of this type of product to be able to decide on a computer solution based on its brand, it will not only be necessary that sufficient publicity of it has been achieved in the market, it must also have average knowledge about functionalities and Software applications by consumers, to assess the advantages of one or another computer system, taking into account then that the potential recipients and final objectives are not simple users, in addition that the quality of the product is indisputably linked to the brand and both are supported, it is therefore even more complex to select a brand for these products, but not impossible.
Even though in our country the technological development can be said to be incipient , there are several institutions that produce computer solutions, we can mention CITMATEL, DESOFT SA, SOFTEL among others and it is the case in addition to the University of Computer Sciences, even the commercialization of some of these products internationally, in the latter case through the trading company ALBET SA
For this reason, it is important to manage the protection of these intangible assets, before their commercialization, not only from the point of view of Copyright in order to have a legal instrument of proof against any violation of the same, but also from the Regime of Industrial Property, as in fact it is done, associating with them a trademark that distinguishes them, taking into account that there is also a multiplicity of these products in international commercial traffic. If this is done based on a coherent selection policy considering the characteristics of this type of product and in correspondence with the trademark regime, a solid and safe commercialization could be achieved.
The selection of trademarks for computer solutions definitely pose a challenge for any company that does not manufacture Hardware, and does generate dissimilar computer solutions capable of being incorporated into existing computer equipment.
In the first case, it is possible that the way to protect the rights over the Software from the perspective of Industrial Property, is by preserving the exclusive rights of the brand associated with the physical product that contains it, if the manufacturer coincides with the owner of the Software or there are previous agreements in this regard. In the second case, the challenge is to make the IT solutions known by themselves, say that they are identifiable and chosen by the end consumer for their own commercial brand.
At the same time, there are other complex issues to solve, due to the dizzying technological development such as the growing conflicts between trademarks and domain names, undoubtedly aspects that should be taken into account if trade and trademark policies are debated.
M
In contemporary times, it has been shown that increasing the industrial processes of the same product or maintaining the offer of the same service for a long time, are useless if commercial policies or development strategies are not adopted according to the characteristics and conditions existing in the world market, if it seeks to achieve industrial diversification, achieve a position in the market sufficient to outperform competitors and above all seek the creation of added value incorporated into products or services offered, the latter is a sine qua non premise to achieve this.
In physical products, the process of incorporating added value is perhaps less complex, because regardless of whether that value is incorporated into the field of advertising and adjacent services to the same marketing chain of these and in turn the brand selected to distinguish them in the commercial exchange fulfills the role of generating customer-brand links in a lasting way, in the end that incorporated value can always be perceived from physical experiences by the end users themselves, but in the case of computer solutions as intangible goods susceptible to commercialization it is a little different.
Computer applications generate dissimilar questions in the current environment, taking into account not only their own nature, but also the set of activities that are linked before or after their creation and which are generally called "computer services", "maintenance services "," Support services ", among others. This means that the brand selection processes in these cases should be better structured by extending the quality standards, beyond the simple intangible good marketed.
There are general rules for the selection of trademarks, among them are repeated in doctrine and legislation in different countries, the necessary observance of the regulations established in the field of Industrial Property, that the selected signs do not identify space or time, the controversial issue of internationality of the brand, their positioning based on the laws of marketing and others.
It should not fail to mention the subject of the susceptibility of registration that distinctive signs must possess, especially trademarks, taking into account national legislation and the incorporated registration prohibitions, taking into account the territorial nature of trademark rights and considering the functions that are associated with it.
A posteriori we add the following question: Can the functions of trademarks be linked to the distinctive characteristics of computer solutions?
Starting from the most generalized and controversial functions, the analysis begins with those referring to the Identification of the business origin, the quality assurance function, the distinctiveness function, the so-called goodwill condenser and the advertising function.
In the complex field of international trade in the face of the phenomenon of Globalization, the role of the brand as an indicator of business origin, has remained at a lower level than other aspects such as the quality of products and / or services, because many are competitors in the market that produce similar products and many more alliances between entrepreneurs, for example, to distribute them under the same brand through licenses for use or sale of the sign, which affects that, in various cases it is not possible due to the The user identifies the true origin of a product or service, and therefore the purchase selection is defined by the brand's references based on the publicity gained and the objective experience of the users with the products, evaluating their quality in the market.
In the case of computer solutions, it generally happens that the brands associated with them are brands of companies that manufacture the hardware to which they are incorporated, being able to identify the business origin from this. What in these assumptions does not generate any type of incongruity before the consumer, but what happens if the incorporated software is not the creation of the company that produces the computer equipment, how does the user know about this, obviously it is an issue that can find solutions based on the publicity that the own brand of the IT solution achieves in the market and this will depend above all on an intelligent brand selection strategy.
On the other hand, the quality of the Software is seen in the development of the IT solution itself, based on standards that satisfy the customers' requirements, which can also be verified through issues such as: functionality, reliability, usability, efficiency, maintainability, portability and scalability or updating of the same.
Everything that the user with average knowledge of Computer Science will be able to verify in the exploration and use of these, but that user who does not have any knowledge about it, will value it only from the simple use, as long as it allows him an experience in his use without major technological complexities, especially and especially also in the "after-sales" guarantees of computer systems.
So that the achievement of a user continuing to acquire computer solutions will also depend on the continuous quality that is achieved not only with the product itself, but also giving the customer the security and reliability that they can enjoy subsequent guarantees of technical support., which will undoubtedly be the mainstay of the brand's guarantee function. If the opposite happens, we will find ourselves in the situation described by the writer Jorge Otamendi6 in this regard.
In the case of computer solutions that are created by reusing components from previous ones, those that in themselves can also be evaluated independently in terms of their quality, everything related to the figure of Co-Branding or the so-called Combined Brands could be extrapolated7, if they have been created those other components by other authors.
It is also possible to distinguish one Software from another, although it is difficult taking into account that they do not have a physical existence and therefore the apprehension of the differences by the users will be subject to the ideal valuation of the same based on their structural elements, the experience that they achieve in the use of these and according to the purpose for which they were created.
Seen from an internal perspective, Software is generally created from programming languages, defined rules from which computer codes are generated, which in turn establish a set of instructions - human readable - that are incorporated into a computer equipment, say a hardware with a processor (chip). Once incorporated, they are translated by low-level instructions that are micro-programmed as an integral part of the processor. As we have said before, in most cases, existing software components or tools are reused, on which new IT solutions are developed.
It is then possible to differentiate computer solutions from computer codes, which is easy for a Science engineer in question, if its configuration also allows him to manipulate the source code8, this not being possible for a simple user who only has average computer skills. However, the latter will be able to assess the differences of one and the other according to the Software Quality parameters that we have already supra-mentioned, in short, if the solution efficiently and effectively meets the requirements and end desired by the end user that the acquires.
This means that you could have two computer solutions that allow similar operations, say audiovisual treatments for example, the user will decide on one or the other depending on the final result that he achieves, in correspondence with the best quality of the resulting video, etc.. But if you can only verify this from the purchase of them on the network, even if you have the possibility of reading the characteristics promoted by their owners of each one, how to make the selection.
Therefore, if the issue is analyzed from an external perspective, selecting a brand that can distinguish software products from the public based on the characteristics of this type of good is complex. Faced with this, we find that trademarks cannot be descriptive of the product or service, or of any of its characteristics, which, if it happens, typifies as an absolute prohibition before registration in most laws, nor be similar or identical to Trade Names and other signs, which appears as a prohibition on registration, to name a few, which further closes the scope of selection of a sign for our products.
What is generally evidenced in international commercial practice is that the brands of computer products respond to a specific business origin, including some of them already with prestige in the market as " Intel" in this field and almost always linked to the hardware manufacturing.
It could be mentioned the role that evocative trademarks play in certain cases , which independently that with them the consumer can infer some element related to some property or characteristic of the product or service that distinguishes, or of the activity carried out by its owner, and that always that this does not result in a generic or descriptive term, can be registered, an example of this could be the Sabrosoya9 trademark.
However, when selecting a brand of this nature for our products, there is a risk that others will use these same characteristics in theirs and that it will be impossible to oppose the registration, because it is very difficult to distinguish those qualities that are often evoked from the descriptive terms about products of the same nature. Therefore, the defense of trademark rights remains fragilely subject to business competition.
For the specific case of computer products, mentioning the letters "PC" together, logically already infer the consumer that it has to do with computers, if we also add "LimPC", the user could also infer that the identified product has something to do with it. with cleaning computers.
In the case of intangible goods, the possible brand selections must be aimed at bringing the user at least a slight reference to the business origin, always avoiding causing confusion in the users about the geographical origin. On the other hand, Identifying computer solutions based on their own characteristics would be complex and there would always be the risk of being left in an assumption of lack of distinctiveness, as the brand selected was merely descriptive.
The function of the brand as Condenser of GoodWill, consists by definition that some authors contribute in “… the prestige or the good reputation… created by… the good quality of the products and the advertising carried out by the owner of the brand or its licensees in around it… ”10, in some cases, aspects such as the excellent location of the brand in the market, customer treatment are included, although it is conceptualized in a general sense as the term“ good will or good faith ”, even including in him the pricing strategies related to the identified products.
The GoodWill is also classified as “formed” or “acquired”, the first being that which is generated as a result of business strategies in general and the second is that which is obtained from the purchase of that good name or prestige from another that was the one that generated it.
In this sense, it reiterates not only the importance of drawing up a brand selection strategy in correspondence with our IT solutions, but also the maintainability of the quality of software products, adding value to post-sale guarantees, which in these cases are more relevant compared to other products on the market, which will undoubtedly influence achieving and maintaining GoodWill.
Currently with the development of ICTs, analyzing the issues of Advertising of products and services in the market, not to mention Marketing11, is to ignore the basis of all advertising action. The essence of even this commercial figure has been modified with the social and commercial evolution, citing terms such as Relational Marketing, differentiated from the so-called Traditional Marketing in that it is configured oriented to the client as the basic nucleus, in search of achieving personalization, feedback and individualization of customers, everything that leads to their loyalty to the products or services on offer.
Internet as a means or channel of communication, is shown as the ideal means to achieve effective results of Relationship Marketing practices, therefore it will be the primary source to achieve customer loyalty with the brands associated with the products or services marketed through this environment. So directing and sustaining brand strategies taking into account the principles and rules that exist in the complex world of digital information exchange and more of Electronic Commerce, it will be essential for our brands associated with computer solutions to achieve sufficient publicity in order to generate the cyber user loyalty.
Therefore, the key to business success will be based on achieving an advertising strategy based in turn on Business Intelligence and achieving the equation (quality + Advertising = goodwill).
C onclusions
Saying intangible or immaterial goods includes the rights of Industrial and Intellectual Property, which are characterized by being territorial in principle and what therefore determines the regime of the legislation applicable to them in terms of their protection.
Currently with the development of information societies, the commercial exploitation of intangible assets crosses the borders of countries and the vulnerability of rights over them to infringements through the media and computer networks becomes evident.
Hence, the holders are concerned about the protection of their rights in several countries at the same time and that they seek to guarantee the commercial exploitation of these by themselves or through licenses, issues that become more complex if it is a trademark Identification of another intangible asset such as Software and one that can be easily exported online, without mediating border regulations and others that could be associated with the marketing chain of physical products.
It is evident that nowadays, the main assets of industries are intangible assets, rather than the products or services themselves generated by companies and institutions, a direct consequence of increased global competition and the development of emerging ICTs and advanced. In addition, the functions of commercial brands adopt new nuances in the field of intellectual creations in the Scientific-Technological sector, this will have to be taken into account and more in relation to computer solutions susceptible of commercialization beyond the channels of physical exchange and direct.
For this reason, it is important to draw up business strategies that take into account how and to what extent benefits and income can be obtained from the management of intangible assets that undoubtedly have a coherent and sound policy and subsequent management of the selection of brands commercial for the computer solutions that are generated marketable, should be a mandatory point if you want to obtain plus benefits.
R efferents Bibliográficas
- Valdés Domínguez, Marta. Trademarks are negotiable. Iglesias, Osvaldo. Creation of a global brand: utopia of marketing? Hernández Ruiz, Alma Delia. “With such a name, such a position.” Casado Camacho, Ledys. "Valuable Cuban experiences in the field of intellectual property" (2007). Available at http://www.aporrea.org/tecno/n93981.html. Díaz Pérez, Maidelyn; Orea Igarza, Uvaldo; Cordero Machado, Elena. “Patent analysis as a basis for decision-making in research projects. Case study ". Sanz Menéndez, L." Relational indicators and social networks in the study of the effects of science and technology policies "(2001). Sancho Lozano, R." Indicators of science, technology and innovation. ”Romeo Lameiras, Eva; González Hernández, Rolando."Information on brands as an indicator of technological innovation." Otamendi, Jorge. "Trademark Law". LexisNexis - Abeledo-Perrot. Year 2003. Page 7 in digital version.. Decree Law 203 on "Trademarks and Other Distinctive Signs", effective date December 24, 1999. Article 2 subsection a). González Arraéz, Miguel Ángel. “The rights of renowned tobacco brands vs. the proposed Community Directive of absolute prohibition of their advertising. University of Alicante Spain ”.“The rights of renowned tobacco brands vs. the proposed Community Directive of absolute prohibition of their advertising. University of Alicante Spain ”.“The rights of renowned tobacco brands vs. the proposed Community Directive of absolute prohibition of their advertising. University of Alicante Spain ”.
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1 Otamendi, Jorge. Trademark Law. LexisNexis - Abeledo-Perrot. Year 2003. Page 7 in digital version.
4 For this research, it will be understood as a computer solution basically Software, not Databases, or Multimedia, which although in themselves are based on Software, they include other elements and characteristics that distinguish them from each other.
8 Set of lines of text that constitute the instructions that the computer must follow to execute said program. Therefore, its operation is fully described in it. It differs from Object Code, in that the latter is the language incorporated into the hardware that translates it so that it can be executed.
9 International Brand belonging to the Mexican Company dedicated to the production of Textured Soy Protein for sausages and industrial processes where there is a need to use proteins of vegetable origin.
11 Definition given by the American Marketing Association: “« Marketing is the process of planning and executing the conception or design of the product, the price, the information and the distribution of ideas, goods and services to generate transactions that satisfy both the objectives of the people like those of the organizations »
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