Brand Power – Brands worth – Brandsworth Licensing

“One law for the lion and the ox is oppression” William Blake



We have had Trade mark registration here in Australia since 1906, both Geoffrey Blainey and Bill Bryson agree that the rise of trade marks and brands was a direct result of the industrial revolution.[1] Brands in this era had humble beginnings.   Everyday goods were increasingly being made in factories and sold under distinctive brands and trade marks. More and more products with distinctive packaging and sold in tins, bottles and other containers became a vehicle for product differentiation. The power of brands began to emerge.[2]

“The first mass-marketing campaigns, starting in the second half of the nineteenth century, had more to do with advertising than with branding as we understand it today. Faced with a range of recently invented products – the radio, phonograph, car, light bulb and so on – advertisers had more pressing tasks than creating a brand identity for any given corporation; first, they had to change the way people lived their lives. Ads had to inform consumers about the existence of some new invention, then convince them that their lives would be better if they used, for example, cars instead of wagons, telephones instead of mail and electric light instead of oil lamps.”[3]

It has been recognized that twenty first century consumers function in a very different environment from their nineteenth century ancestors. Historically the trade marks purpose is unchanged, however today the consumer is faced with trade marks as value symbols and lifestyle goals.[4] The intersection of the power of trade marks and culture emerges. Today trade marks represent globalization and consumerism on a massive scale and play are large role in everyday life. “One could say that trade marks are cultural artefacts which are bearers of immense aesthetic and emotional affects.” [5]

If trade mark laws are to protect consumers from being confused – why are trade mark laws being used to claim control over culture and attempt to override free speech? What should more well known trade marks receive better protection that others? The answer to this question ultimately lies in the value and substance that our culture places on the mark. It also depends on how well the product has been marketed and how much the trade mark has been absorbed into our culture.  “Signs including trade marks provide bites of information to which we attach cultural values that include class, gender, education, ideology, ethnicity and lifestyle.”[6]

Originally, trade mark law protected the ownership rights in a sign only so far as it was necessary to protect consumers from being deceived and confused in the market place. This recognition is based on the public’s ability to indicate the source of the goods.

We must recognize that trade marks are an important part of our culture, yet protection must be granted which allows other competitors to operate in the mark place. It has been argued by Megan Richardson that registration for trade marks should be set high so that the language commons should remain in its natural state.[7] Infringement of a registered trade mark should be construed narrowly to avoid a grant of a proprietary right. [8]

If you are interested in Licensing your brand. Brandsworth Licensing can help. Please contact me via my website
Tracy Sweeny

[1] Tucker, P. “Trade marks in the future- an IP perspective”. (2004) 15 AIPJ p. 128

[2] Ibid p, 129

[3] Klein, N. op cit p. 7

[4] Ibid p. 130

[5] Reynolds, R. and Stoianoff, N. Intellectual property: text and cases. Federation Press, 2005.p. 468

[6] Bosland, J. “The Culture of trade marks: an  alternative cultural theory perspective” IPRIA Working paper No. 13/05 p.15

[7] ibid

[8] Richardson, M. “Trade marks and language” [2004] 9 Sydney Law Review  p.1

1 Comment

Filed under Brand Power, Copyright Law, Trade Marks Law

One response to “Brand Power – Brands worth – Brandsworth Licensing

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