POSITION MARKS

By Carlos Enrique Castillo G.

In the constant fight against trademark counterfeiting (of which we find a precedent in the purpose of the Paris Convention -1883-, of which it is highlighted that with this instrument, the repression of unfair competition has been sought.[1]), now we have new figures, which allow us to strengthen arguments and evidence to protect original products, and thereby enforce the rights of legitimate trademark owners, and thus also protect the rights of consumers against such acts (the unfair competition/counterfeiting), commonly called PIRACY.

Thus, a little more than a decade ago, we began to talk about position brands; and regarding which, various concepts have been provided. These brands are characterized, and from there they get their name, by the position in which they appear on a certain product. They consist of the way and specific place in which the mark is placed or adhered to the product.

Due to the impact of advertising development, the consumer now perceives product and service identifiers in more sophisticated ways. This is how brands are presented to the consumer public accompanied by much more elaborate advertising campaigns (that establish a fashion or trend), we find catchy commercial jingles, expressions that we make our own on a daily basis, symbolism that has come to determine the difference between the original products. of the false ones; And so position brands have been well received.

Regarding the registration or registration process, an application is sufficient, accompanied by a graphic representation of the same, through a design or drawing, detailing the special position of the brand on the product, and of course the corresponding explanation regarding its size or proportion, color if any, and any other characteristic that is useful for its identification.

Regarding its nature, we can affirm that it is a mixed mark since it is graphic, it can even be two or three-dimensional, it may or may not consist of a specific color, but in any case, it perfectly fulfills the function of identifying in specific and differentiate products and services from competitors. Generalizing its doctrinal categorization as “unconventional brands”, a category in which we also find moving brands, texture marks, fingerprints, among others.

Regarding the ability to distinguish, which these brands involve, it is limited to the precise and above all ingenious location, with which a producer manages to establish, within the preparation or manufacturing of its products, a differentiating element, which it perceives. unmistakably the consumer, and thereby avoid any error or confusion caused by the imitation or falsification of such products.

The above is based on the three principles that govern intellectual creative activity, originality, creativity and good faith, in such a way that position brands generate exclusivity in favor of their owners (with the ability to exclude), determined by the exact place where a brand is located within a product. Such location or position must be the product of the ingenuity of its creator, representing a novel and creative form of location, that is, one that differs and is different from any other previously existing location; and that such location has been intended or chosen through an act of good faith, free of any intention of imitation or copy.

If the above is true, we are dealing with a position mark, and if so, it enables its creator to prevent (exclude) any other competitor that may include its brand(s), in the same place, from corresponds to products of the same nature; Such a position (the novel one) in fact constitutes an additional element to distinguish an original product from those of other companies.

Consequently, the position in itself, which constitutes a trademark distinctive, must be considered, as an identifying element, independent of the rest of other distinctives that identify a product, that is, with its own capacity to clearly indicate the owner who is the manufacturer of the product, or to determine the product's own brand.

[1] https://www.wipo.int/treaties/es/ip/paris/summary_paris.html