Functions of a trademark

A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises. Trademarks are protected by intellectual property rights.

1. TRADE MARK FUNCTIONS Prasanna R Kovath Assistant Professor Department of Biotechnology St. Mary's College Thrissur

2. The “essential function” of a trademark “the essential function of the trade-mark . . . is to guarantee the identity of the origin of the trade-marked product to the consumer or ultimate user. By enabling him without any possibility of confusion to distinguish that product from products which have another origin .

3. This guarantee of origin means that the consumer or ultimate user can be certain that a trade-marked product which is sold to him has not been subject at a previous stage of marketing to interference by a third person, without the authorization of the proprietor of the trade-mark, such as to affect the original condition of the product. The right attributed to the proprietor of preventing any use of the trade-mark which is likely to impair the guarantee of origin so understood is therefore part of the specific subject-matter of the trademark right .”

4. FUNCTIONS OF A TRADEMARK A trademark serves the purpose of identifying the source or the origin of goods. Trademark performs the following four functions. It identifies the product and it’s origin. It proposes to guarantee its quality. It advertises the product. The trademark represents the product. It creates an image of the product in the minds of the public particularly the consumers or the prospective consumers of such goods.

5. MARKS NOT REGISTERABLE The use of which would be likely to deceive or cause confusion. A mark the use of which would be contrary to any law for the time being in force A mark comprising or containing scandalous or obscene matter A mark comprising or containing any matter likely to hurt the religious susceptibilities of any class or section A mark which would be disentitled to protection in court of law A mark which is identical with or deceptively similar to a trademark already registered in respect of the same goods or goods of the same description A word which is the accepted name of any single chemical name or chemical compound in respect of chemical substances. A geographical name or a surname or a personal name or any common abbreviation thereof or the name of a sect, caste or tribe in India. Besides others

6. FUNCTIONS OF TRADEMARKS IN INDIA IN GENERAL TRADEMARKS EXECUTE FOUR FUNCTIONS : (1) To identify goods or services of one seller and separate them from goods or services sold by others. (2) To signify that all goods or services bearing the  trademark  come from a single source, albeit anonymous source. (3) To signify that all goods tack the  trademark  are of an equal level of quality (4) As a prime instrument in selling and advertising the goods or services. (5) Renting by way of licensing of franchising.  Trademarks  serve two or more functions which are referred to as double function of the trademarks adding up to seven functions. (6) Protecting the public against confusion and deception by identifying. The source of origin of particular products as distinguished from other similar products. (7) Protecting the trademark owner’s trade and business as well as the goodwill which is attached to his trademark

7. ROLE AND FUNCTIONS – TWO DIFFERENT CONCEPTS There is a basic different in the role and function of a trademark. The functions which trademark perform are regulated by law, whereas it is difficult or impossible to regulate the role of trademarks.  The understanding of the distinction between the role and  the functions of trademarks protected  by the law brings home the realization that some of the role played by the trademarks cannot be effectively regulated by legal mechanisms.

8. PRODUCT DIFFERENTIATION FUNCTION Trademarks are the basic means of achieving product differentiation. The term “product differentiation”  refers to an imperfection in substitutability to the buyers of products or services of competing sellers in an industry. It refers to an image of product entrenched in a manner that a buyer, F or example, believes that he needs ‘Surf’ and it is not consider a washing powder, or he necessarily a ‘Honda’ and not a motor cycle . In the case of price competition, the demand curve is accepted. In perfect competition,  trademarked products or services  of different sellers are perfect substitutes from the point of view of the buyer. But in product differentiation competition, such trademarked products or services are just close substitutes .  The competition takes place in advertising effort and building brand loyalty based on non-substitutability of the products and services . 

9. IDENTIFICATION OF SOURCE AND ORIGIN FUNCTION One of the most important function that a trademark performs is to serve as a source of information to the customer as to identification of source or origin of a product.  The ‘trademark’ is an abbreviated condition of suggesting the full set of qualities of a product including the state of art technology, after sales service, warranties. The extent of product information function of the  trademark  is, therefore considered constrained. 

10. TRANSFORMATION OF ORIGIN FUNCTION The indication of origin function has been transformed in modern times through brand registration. The brand proliferation has been one of the more important consequences of brand marketing.  If the product is one for which consumers switch brands frequently, then brand proliferation on the portion of  the existing company  derives the excepted sales of a newly entering firm, thereby producing a barrier to the entry of  new company.   One drawback of such brand proliferation is that the  trademarks  fail to perform their indication of origin function properly. As consumers can trace the source of a product, they are assisted in their purchasing decision by trademarks.  Once a product is identified through a certain trademark, it can be purchased again by the consumer if he is satisfied with it or vice-versa .

11. EXPERIENCED QUALITY FUNCTION AN ANCILLARY FUNCTION Identification of products and their quality is  a secondary function of a trademark,  ancillary to its basic function of creation of goodwill. The goodwill embodied in a  trademark  constitutes property in a  trademark , has already been mentioned. The goodwill function brings the costs of the trademarks to the society while the identification of source and quality is good to the  buying public of their registered mark.

12. PROTECTION AGAINST UNFAIR COMPETITION In respect of the quality identification function, doubts have been expressed as to its effectiveness. But it must be understood that it is closely related to protection against unfair competition   The trademarks contribute in protecting consumers against confusion in the market place for their  logo . They facilitate quality-checking carried out by consumers themselves through their own experience. In the sense, trademarks give a gurantee of thinness or uniformity of quality rather than a stipulate of quality for their  logo  is to be superior . As to quality, the view differs whether  trademarked goods or services  are of the same level of quality or they give consistency of quality. In reality, it is always a felt or experienced quality by the consumer which is related with expectations of quality.

13. THE PRACTICE IS KNOWN TO BE ALREADY FOLLOWED. Quality identification function only indirectly serves the buyers interest in having complete and better information. If an owner can enhance  the quality without registration  to anyone.  Then the natural assumption would be that he can bring the quality back to previous level or he can deteriorate it further. An unprecedented high quality is generally expected from the reputed  trademarks .

14. NO OBLIGATION AS TO ANY SPECIFIC QUALITY No law expressly or impliedly imposes an obligation on the trademark owner to maintain a specific quality for all products which bear his trademark. The trademark owner is at liberty to improve or deteriorate the quality of his goods or services at any moment without running the risk of losing his  trademark registrations . Normally, the trademark owner would not desire to diminish the quality of his branded goods. But legally there is no obstacle whatsoever and there is no objection to lowering of quality. However , the features of quality which are described as a matter of trade description are to be fulfilled. So as to comply with law of  false trade registrations.

15. TRADEMARKS FOR SMALL AND MEDIUM SIZED BUSINESSES Functions Of Trademark Trademarks enable the companies to distinguish themselves, their brand, and their products from those in the competition. Needless to say, Trademarks play a powerful role in the branding and marketing strategies of a company. The reputation of the company, the image of the company, all creates a trust among their clients, which forms the basis of establishing a loyal client base and also the company’s goodwill. Trademark defines the Origin of the Product. Sometimes, the customers also form an emotional attachment with some trademarks based on the quality of the products.

16. FUNCTIONS OF TRADEMARKS To Act as a Badge of Origin Distinguishing Function To Guarantee Quality of Products Advertising Function Investment Function

17. A variety of functions of trademarks have been acknowledged, but none are perfect and there seems to be many flaws in them. Not all functions are even universally recognised . A trademark which does not serve its primary function, which is the indication of origin should not under any circumstances be regarded as a trademark. Some functions of trademarks are extremely controversial. The function of trademarks to guarantee quality has been long debated for, as there is no legal framework which will guarantee that the quality of products and services are maintained by the proprietor .

18. https://www.advocatekhoj.com/library/lawareas/trade/functions.php?Title=Trademark&STitle=Functions%20of%20a%20Trademark https://www.solubilis.in/blog/functions-of-trademark-india/ https://courtingthelaw.com/2015/10/02/commentary/legal-importance-and-functions-of-trademarks-2/