Any crisis triggers a re-evaluation of the values and priorities of the person or group of persons involved. When the sun shines again, usually something new develops to meet the new circumstances.
One of the predictable impacts of the current crisis is likely to be fewer requests for applications, especially where the fee is on a per class basis, and of course, fewer renewals of trademarks. We have already seen considerably fewer renewals at the Romanian Patent Office in the past six months.
But the economical circumstances could also lead to changes in the way that marks are created. The essential function of a trademark—to distinguish the goods of one undertaking from the goods of another undertaking—has, in my view, been diluted over the past eight to 10 years by the acceptance for registration in many European jurisdictions (national or Community Trade Marks) of marks that walk a fine line between 'descriptive character' and 'distinctive character'. The registration of the trademark Baby Dry may have opened the door to this permissive approach of the authorities, but it will not have been the only one. In recent years, I have seen many of my Romanian clients spend huge budgets on trademark creation for marks that were mostly descriptive.
When competition strengthens and there are fewer players in each market, wouldn't it be a logical approach to create more distinctive signs? And wouldn't brand creation itself be more efficient for a lower budget? I would say 'yes', but the key question is whether the current crisis will provide sufficient incentive for marks to become more 'distinctive'. In order to attempt to answer this question, we need to look at the public—the 'consumer' of trademarks.
In Romania, during the almost 20-year period since the events of 1989 (when the political and economical regime changed), there has been an explosion of brands. Before 1989, for each product, there were only a few brands available and these obviously were very well known by the public; for example, the national brand for cars, Dacia, or the national brand for detergents, Dero.
After 1990, and in particular during the past 10 years, a large number of international brands have entered the market in all economical sectors. The consumer has been bombarded with the promotion of a large number of new brands within a quite limited timeframe, fueling the famous "imperfect image of the marks", as it is referred to in jurisprudence. For this reason, the average Romanian consumer is more prone to confuse one brand with another than the average French or German consumer.
Sometimes Romanian consumers have heard of a mark, but do not know what goods it relates to. This explains the creation by national applicants of national marks with many descriptive elements to help the public identify the goods on which the marks are affixed.
However, there has been a perceptible recent trend towards the creation of national marks that will be registered in foreign jurisdictions to have true 'distinctive character', for example, the trademarks novensys, CERAMICAIAȘI and MYSTAFF
In Romania, new economic conditions are likely to result in fewer trademarks, but promotion of those marks will be more focused and explicit. This may help the public to become a little more sophisticated and perhaps more educated in terms of brands. Also, consumers are likely to take more time to make a decision about a purchase, particularly in respect to items with a higher price tag, and this will cause consumers to pay more attention to the brands.
And last but not least, the quality of the brands created by Romanian companies is expected to improve, as brand identity will need to be stronger.
One thing is for sure: trademarks will survive!
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Raluca Vasilescu is a trademark attorney and partner at Cabinet M. Oproiu in Bucharest, Romania. She can be contacted at: raluca at oproiu dot ro
source: World Intellectual Property Review January/February 2009, page 63 - www.worldipreview.com
