Chapter 3: The Marketing Power of Trade Marks
1. INTRODUCTION Chapter 2 has shown how a trade mark is a means of establishing, signifying and referring to a distinctive and exclusive identity that can be used for the marketing of goods or services (or collectively ‘products’). Products with such an identity are likely to be consistent with each other in terms of their quality and other characteristics and to remain consistent over time. This likelihood of consistency is due to the fact that one undertaking has the exclusive right to confer the marketing identity that the trade mark signiﬁes on products of the kind for which it is registered and the fact that this undertaking is in a position to determine the quality and other characteristics of the marked products and thereby to ensure their consistency. Chapter 2 has also shown that this consistency can be deep, reﬂecting characteristics that require a speciﬁc set of skills and experience to replicate, and dynamic, reﬂecting the controlling undertaking’s freedom to vary the quality and other characteristics of the marked products if it so decides. Moreover, the fact that one undertaking must be in a position to vouch for the quality and marketing condition of the marked products, this does not mean that one ﬁrm must have produced and must continue to produce the marked products in-house. The undertaking has the discretion to determine precisely how it reconciles its interest in meeting consumers’ expectations about the marked products with its interest in minimizing the costs of doing...
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