The only thing you really own is what you create; and the only thing you can create without needing someone else to give you raw materials first, is intellectual property. -Caliban Darklock
A ‘mark’ as per Section 2(m) of the Trade Marks Act, 1999 (hereinafter “Act”) includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof. Whereas a ‘trademark’ is defined as “a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours” as per Section 2(zb) of the Act.
World Intellectual Property Organisation (“WIPO”) is a self-funded agency of the United Nations (“UN”), established in 1967 with 193 member states that acts as a global forum for intellectual property (“IP”) services, policy, information and cooperation. The international registration and management of trademarks is facilitated by the Madrid Protocol which is administered by WIPO and presently, 99 countries from across the world have joined the Madrid Protocol.
| MARK | EXAMPLE |
| Word | PEPSI, COCO COLA, PEPSODENT |
| Name | RAYMOND VEIL, CHRISTIAN LOUBOUTIN |
| Surname | TATA, BATA, BAJAJ |
| Letters | BMW. IBM, HDFC |
| Numbers | 555, 501 |
| Symbols | MERCEDES BENZ THREE POINTED STAR, ADDIDAS PYRAMID |
| Device | Amul Girl, Pillsbury Boy |
| Colour Scheme | Pizza Hut, Dominos |
| Signatures | Louis Phillipe |
| Shape of Goods | Coco Cola Bottle |
The resources of a business such as technology, assets and IP are the building blocks of brand value. We must educate ourselves to manage and strategies assets (tangible and non-tangible) better. In the era of stiff competition amongst brands, the competitive advantage attributes towards maximum brand development. Yet, very few companies know potential of value contribution of their IP assets. Intellectual Property valuation can help one determine the true value of business and capitalize on assets. Wealth is the sum of working capital, fixed capital and intangible assets. Value from an IP asset is derived through direct exploitation like sale, assigning and licensing of the IP. The most commonly used method to determine standard value is Fair market value (Market value) and it can be defined as the price at which an asset or service passes from a willing seller to a willing buyer. It is assumed that both buyer and seller are rational and have a reasonable knowledge of relevant facts. Fair value (Fair price) is seen as appropriate for use in post transaction purchase price allocation. Furthermore, the competitive strength of an IP asset determines the comparative valuation that it shall hold in the market. The factors such as customer responsiveness and market distribution of a product or availing service determine its IP value.
A thorough understanding of the IP Assets ensures an informed negotiation and decision making regarding the terms and conditions at the time of licensing-in or licensing-out of IP especially in determining fair and robust royalty rates. In the case of franchising too, both the franchisor and the franchisee require a thorough understanding of the value of the trademark(s) and trade secrets and know- how of other IP assets. Examples – McDonald’s, Pizza Hut, Dominos, Haldiram, Bikaneervala.
Thus “Trade Mark” as defined under Section 2(zb) of the Trademark Act, 1999 throws light on enriching the business with peculiarity, to secure and differentiate it with other a like business and firms around the world. Just like individuals develop skills as to outperform/outclass our competition in the market, each business/organisation requires a trademark which serves as an epaulet on the face of the business.
With the dynamic changes that the world has been going through, and the expansion of the competition of a business with not just indigenous business, but business around the globe, having a trademark is an imperative to run the business smoothly. This not only secures a business from counterfeiting but also lays a niche of its own.