Part 1. Concept of band names. 4
Part 2. The courts and judges in USA.. 5
Part 3. Band Protection in China. 7
The band protection system emerged as a product of the development of human civilization and commodity economy and in various countries it has increasingly become an effective legal tool for protecting the interests of the owner of intellectual products promoting the development of science technology and the social economy and allowing international competition.
Since the 1980s bands and the management of bands have attracted an enormous amount of interest. Companies became acutely aware of how their band image could mean the difference between success and failure. Band Management: A theoretical and practical approach gives insight into this phenomenon moving from the history of the band to how to develop manage and protect bands. Band Management: A theoretical and practical approach takes a decision-making approach to the subject structured around the decisions a band or product manager would face when considering their own band strategy covering topics such as design judicial protection adverse publicity and financial-band valuation.
How do you overhaul and reorganize more than 3 000 trademark registrations owned by an $11 billion global corporation?
That was the question faced by Ingersoll-Rand several years ago when it sized up its trademark situation.
Ingersoll-Rand founded in 1905 was long known for its tools and machinery which carved the faces on Mount Rushmore. The company now is a diversified company that makes refrigeration equipment (under bands ThermoKing Hussmann); compact vehicles such as small loaders excavators and golf cars (under bands Bobcat Club Car); locks and security systems (under bands Schlage Kryptonite); construction equipment such as pavers compactors portable compressors; and industrial equipment such as generators turbines.
The benefits in preserving our band integrity were more far reaching particularly in terms of avoiding band dilution. Many new product/ service offerings were accompanied by a new name so in many instances the promise of core bands might confused by the marketplace. For instance if the promise of a strategic band is technological innovation would you then really need a new sub-band for the next generation of a product family? In this case does a new name really provide a competitive differentiation or just create confusion?
Part 1. Concept of band names
Band is the image of the product in the market. Some people distinguish the psychological aspect of a band from the experiential aspect. The experiential aspect consists of the sum of all points of contact with the band and is known as the band experience. The psychological aspect sometimes referred to as the band image is a symbolic construct created within the minds of people and consists of all the information and expectations associated with a product or service.
People engaged in banding seek to develop or align the expectations behind the band experience creating the impression that a band associated with a product or service has certain qualities or characteristics that make it special or unique. A band is therefore one of the most valuable elements in an advertising theme as it demonstrates what the band owner is able to offer in the marketplace. The art of creating and maintaining a band is called band management. Orientation of the whole organization towards its band is called integrated marketing.
Careful band management seeks to make the product or services. Therefore cleverly crafted advertising campaigns can be highly successful in convincing consumers to pay remarkably high prices for products which are inherently extremely cheap to make. This concept known as creating value essentially consists of manipulating the projected image of the product so that the consumer sees the product as being worth the amount that the advertiser wants him/her to see rather than a more logical valuation that comprises an aggregate of the cost of raw materials plus the cost of manufacture plus the cost of distribution. Modern value-creation banding-and-advertising campaigns are highly successful at inducing consumers to pay for example 50 dollars for a T-shirt that cost a mere 50 cents to make or 5 dollars for a box of breakfast cereal that contains a few cents' worth of wheat.
Bands should be seen as more than the difference between the actual cost of a product and its selling price - they represent the sum of all valuable qualities of a product to the consumer. There are many intangibles involved in business intangibles left wholly from the income statement and balance sheet which determine how a business is perceived. The learned skill of a knowledge worker the type of metal working the type of stitch: all may be without an 'accounting cost' but for those who truly know the product for it is these people the company should wish to find and keep the difference is incomparable. Failing to recognize these assets that a business any business can create and maintain will set an enterprise at a serious disadvantage.
A band which is widely known in the marketplace acquires band recognition. When band recognition builds up to a point where a band enjoys a critical mass of positive sentiment in the marketplace it is said to have achieved band franchise. One goal in band recognition is the identification of a band without the name of the company present. For example Disney has been successful at banding with their particular script font (originally created for Walt Disney's "signature" logo) which it used in the logo for go.
Consumers may look on banding as an important value added aspect of products or services as it often serves to denote a certain attractive quality or characteristic (see also band promise). From the perspective of band owners banded products or services also command higher prices. Where two products resemble each other but one of the products has no associated banding (such as a generic store-banded product) people may often select the more expensive banded product on the basis of the quality of the band or the reputation of the band owner.
Part 2. The courts and judges in USA
The judges and the courts in which they sit are a good starting point. Band names causes are invariably assigned to the Patents Court part of the Chancery Division of the High Court (the only exception being those that are started in the Patents County Court which in some ways is barely distinguishable from the High Court equivalent). The Patents Court which for years had a single judge assigned to it (Whitford Aldous Jacob Laddie and Pumphrey JJ will become familiar names to the student of this area of law) now boasts seven (Lewison Mann Kitchin Floyd Arnold Morgan and Norris JJ ). A number of practising barristers also sit as deputy judges and there is also a need for practitioners to exercise their judicial talents as appointed persons to hear appeals from decisions of the UK Band Office.
In the days when a band names would have to wait until one particular judge had time to hear it there could be a significant delay between the issue of proceedings and trial. As a result many (perhaps most) band names were dealt with conclusively at an interlocutory hearing maybe even ex parte. A plaintiff would be unhappy at the prospect of waiting months for the trial to start and would often want to seek an interlocutory injunction right at the outset to stop the defendant doing whatever wrong he was accused of. An injunction would be granted if the plaintiff had a strong arguable case if the balance of convenience favoured it (the plaintiff would suffer irreparable harm if the defendant were allowed to continue: the defendant could be compensated if the injunction were wrongly granted) and if the plaintiff gave a cross-undertaking in damages to guard against that eventuality.
At that early stage in the proceedings the defendant might be restrained from carrying on the business from which he earned his living obliging him to find an alternative clearly non-infringing source of income. The injunction would remain in place for months until trial and the fact that it had been granted indicated that the judge liked the plaintiff's case. That added up to a strong indication that a settlement would be a good idea.
Likewise a plaintiff denied an interlocutory injunction would receive a loud message discouraging him from further litigation. Band names cases have always been notoriously expensive and going full steam ahead after an indication had been given that the judge was not convinced about the strength of the case would give the plaintiff pause for thought.
Nowadays with more judges to hear band names cases despite there being more and more band names cases to hear (in contrast with other divisions of the High Court since Lord Woolf's civil justice reforms) cases come to trial much more speedily. An application for interim or urgent relief may be met by the judge (charged by the same civil justice reforms with being more proactive in the management of his cases) setting the case down for a speedy trial. And in the post-Woolf environment if the parties get to trial they might find their counsel being summoned to the judge's chambers at an early stage to hear how he expects the case to go and to receive a clear if not explicit exhortation to settle.
Part 3. Band Protection in China
As a whole China however for a variety of historical reasons began work on its band rights protection system at a comparatively late date. After China started reform and opening to the outside world it accelerated the process of establishing an band rights protection system in order to rapidly develop social productive forces promote overall social progress meet the needs of developing a socialist market economy and expedite China's entry into the world economy.
Today band protection is an issue of universal concern in the international political economic scientific technological and cultural exchanges. International bilateral and multilateral negotiations on this topic especially the reaching of the Agreement on Trade-related Aspects of Band Rights in the General Agreement on Tariffs and Trade (GATT) have raised worldwide band protection to a new level.
In today's world great importance is attached to band protection. What is China's specific position regarding this question? What is China's current legislation on band rights and how is it enforced? What measures has China taken to ensure its international commitment to band protection? A brief introduction to these issues will prove useful.
It is the Chinese government's view that the band protection system plays a significant role in promoting progress in science and technology enriching culture and developing the economy. It functions both as an important institution ensuring the normal running of the socialist market economy and as one of the basic environments and conditions for conducting international exchange and cooperation in science technology economy and culture. China considers the protection of band an important part of its policy of reform and opening to the outside world and of the building of its socialist legal system.
The basic framework for China's band rights protection legal system was completed for the most part in the 1980s. In the 1990s international economic relations and the international economic environment have already undergone great changes.
The Chinese government's sincerity in its efforts to scrupulously abide by international conventions and bilateral agreements regarding the protection of band rights and its capacity to fully implement its international obligations have been appreciated and supported by world opinion.
Along with its progress in reform and opening up China has made big strides in band protection. In accordance with its national conditions and current tendencies in international development China has formulated and finetuned various laws and regulations on band protection thereby constructing a socialist legal system for band protection with Chinese characteristics. The scope of the band rights protected in China and the degree of protection afforded have gradually conformed with international practices and the high degree of legal protection for band rights has been realized.
China has a complete legal system for the protection of band rights. China's band law stipulates the legal responsibilities to be borne by anyone who violates the law including civil liability criminal liability and exposure to administrative sanctions.
China's Patent Law provides that in the case of infringement arising from the exploitation of a patent without authorization of the patentee the patentee or other affected parties may request the patent administrative authorities to deal with the matter or may directly file suit in a people's court. In investigating and dealing with the matter the patent administrative authorities are empowered to order the infringer to stop all acts of infringement and compensate for any losses. Whoever counterfeits a patented product or wrongly appropriates a patented technique will be ordered by the patent administrative authorities to cease all acts of counterfeiting to provide the public with notification of his or her violation and to pay a fine. In the case of serious violations the criminal liability of the person directly responsible shall be investigated through application of relevant articles of the Criminal Law and if found guilty the person directly responsible shall be sentenced to fixed-term imprisonment of not more than three years criminal detention or a fine.
With the implementation of band laws band rights are effectively protected in China. These laws are also actively encouraging invention and other forms of creation and fair competition. For instance the protection of the right to the exclusive use of registered trademarks has resulted in the rapid growth of the number of trademarks registered by Chinese and foreign businessmen in China. By the end of 1993 the number of effective registered trademarks had exceeded 410 000. Of these 350 000 were domestic with the remaining 60 000 coming from 67 countries and regions. Companies from the United States for example had only 122 trademarks registered in China before 1979; by 1993 that number had soared to 16 221 more than a hundred times the earlier figure. In 1993 there were 170 000 applications for trademark registration annually in China including more than 130 000 applications for new trademarks registration among the highest number in the world. In addition the Patent Law of China has greatly encouraged inventions and other creations in China and has proved a magnet to patent applications from other countries and regions. On April 1 1985 the first day the Patent Law came into effect 3 455 applications for patent rights were submitted. By the end of 1993 the Patent Office of China had handled over 360 000 applications for patent rights.