Consumers consider the essential function of the trademark to be their essential right

Authors: Kaie Puur, Lawyer, Patent Attorney at „RestMark Metida“ , Maria Silvia Martinson, Lawyer at „RestMark Metida“ 

1A trademark is defined as a sign used to distinguish the goods or services of a person from other similar types of goods or services of other persons. From that definition derives the understanding that the main function of a trademark is being an indication of source, able to identify certain products, allowing them to be distinguished from other similar ones.

In its 1978 decision Hoffmann-La Roche v. Centrafarm, the European Court of Justice stated the following: „The essential function of the trademark is to guarantee the identity of the origin of the trademarked 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. This guarantee of origin means that the consumer or ultimate user can be certain that a trademarked 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 trademark, such as to affect the original condition of the product. The right attributed to the proprietor of preventing any use of the trademark which is likely to impair the guarantee of origin so understood is therefore part of the specific subject matter of the trademark right.“

Therefore the essential function of a trademark comprises two key aspects. First, the trademark must associate with a certain service provider or manufacturer in the eyes of the consumer. Due to that the consumer can expect a certain quality from the products marked with the same trademark as the proprietor of the trademark is interested in retaining the quality of the products manufactured or services rendered, therefore exercising a more thorough control.

Second, the guarantee of origin is closely entwined with the importance of distinguishing products from each other. If a consumer has managed to create a link between the goods and the origin or quality of those goods, the consumer pays attention to which products to buy and how to identify them, using trademarks. If all water bottles had the same packaging as well as identical labels, people would not be able to tell the difference between the products.

Interestingly enough, consumers actually find the aforementioned essential function with its key aspects to also be their essential right, expecting the products to be trademarked since the selection of goods is very wide. During the World Intellectual Property Day on the 26th of April, a survey was conducted among Estonian consumers, which showed that 81% of consumers consider getting information about the trademark and the product itself on the packaging important. 51% found the right to be extremely important, while 30% considered it necessary.

Trademarks, the price of the goods and previous experiences are main criteria when making buying decisions. 56% of consumers make their decisions of buying everyday goods depending on the trademark. Of those consumers 23% stated that their decisions are very much influenced by the trademark on the goods, yet 33% were open to buying goods with different trademarks as well. Only 11% of consumers were certain that trademarks do not influence their decisions at all.

The Estonian consumers also admitted that they would find it very disturbing and improper if, for example, all soft drinks were bottled the same way and the trademark was invisible. Only 4% did not think that would be a problem.

Overall, trademarks are very important in a market economy, since there are many service providers and manufacturers. The essential function of a trademark is to be an indication of source and therefore an indication of certain quality, also to distinguish certain goods or services from others. Consumers recognize the importance of said functions and consider it their essential right to have a selection of clearly trademarked goods to choose from and be informed when making that selection.

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