A well-made brand mark becomes a valuable intangible asset controlling the image of the business. Businesses are utilizing trademark rights as a powerful means to protect the value of an intangible asset. We often see cases of being led to dispute cases for trademark rights due to indiscriminate imi...
A well-made brand mark becomes a valuable intangible asset controlling the image of the business. Businesses are utilizing trademark rights as a powerful means to protect the value of an intangible asset. We often see cases of being led to dispute cases for trademark rights due to indiscriminate imitation of brand marks by second movers. The following dispute case was noted in the present study.
In the past September, 2011, Apple Company pointed out through a law firm in Beijing that 1)the brand mark of Sichuan Fangguo Foods Company was similar to the mark of Apple Company and 2)the pronunciation of ‘Fingguo’ as Apple's name in China was similar to that of ‘Fangguo’. Apple Company presented two conditions for dispute resolution to Fangguo Company of China. The first was to “Immediately remove the leaf”, and the second was "Retract trademark registration from goods" as a competing area with Apple Company. The point requiring our attention here is the first condition.
When inferred from the first condition, Apple Company has presented the leaf as a part of the brand mark of Apple Company as the decision criterion for similarity of brand mark. Meanwhile, an IT-specialized medium (9to5mac) pointed out that the brand mark of Fangguo Company was similar to that of LG rather than to that of Apple Company. Combining such a series of articles, the determining criterion for similarity can be seen to be mutually different between the US business of Apple and the Chinese business of 9to5mac. The author came to have questions such as: “Is the response method of Apple Company really desirable? Or else, LG?”, “Is the perceived decision of similarity really the same as the decision of similarity for infringement upon a trademark right?”
Thus, the primary objective of the present study is to consider the effects of brand marks on the perceived similarity and decision of infringement upon a trademark right, based on the case raised above. The effects of typicality of and thinking style for brand marks as well as variables due to patriotism have also been considered. Therefore, the present study is composed largely of 3 parts, with the study results being as follows.
First, the phenomenon of asymmetric similarity decision for a brand mark was shown to be varied by the difference in typicality of a brand mark. Namely, whereas the phenomenon of asymmetric similarity decision for a brand mark appeared in the case of a large difference in typicality, the phenomenon of asymmetric similarity decision for a brand mark was not observed in the case of a small difference in typicality.
Secondly, a difference in the perceived similarity decision was observed differently for the two brand marks presented per case.
Thirdly, the perceived similarity decision for brand marks was controlled at a statistically significant level by thinking styles. Namely, comprehensive thinkers rather than analytical thinkers were shown to evaluate the overall similarity more highly. Whereas the overall similarity decision for the two brand marks was shown to be higher between Fangguo and LG than between Fangguo and Apple according to the comprehensive thinkers while showing a significant difference, the overall similarity was shown to be higher between Fangguo and Apple rather than between Fangguo and LG according to the analytical thinkers while showing no significant difference.
Fourthly, the perceived similarity decision for brand marks was affirmed to appear higher in attribute similarity than in overall similarity.
Fifthly, the overall similarity was shown to have a positive(+) effect on the probability of infringement upon the trademark right.
Sixthly, the decision of infringement upon the trademark right was controlled by patriotism level on a statistically significant level. Namely, if the patriotism level is high even for the group which determines the overall similarity of a brand mark to be low, the infringement upon a trademark right was shown to be determined higher as compared with the group of a lower patriotism level. Such decision of infringement upon a trademark right was also shown to be different depending on the patriotism level per country.
When these are combined, a significant difference was observed in the decision of infringement upon trademark rights in the US only between Fangguo and Apple. Namely, irrespective of the (high/low) level of overall similarity decision for brand marks (Fangguo vs, Apple), the group with a high level of patriotism was shown to determine the infringement upon the trademark right between Fangguo and Apple in be higher in both groups considering Fangguo and Apple to be similar as a whole.
Meanwhile, in Korea, a significant difference in the decision of infringement upon trademark right was observed only between Fangguo and LG. Namely, even the group considering the overall similarity to be low was shown to determine the infringement upon the upon the trademark right between Fangguo and LG to be higher as compared with the group having low patriotism, if the patriotism level is high. In China, on the other hand, no difference in the decision of infringement upon the trademark right was observed between Fangguo and Apple and between Fangguo and LG in terms of the decision on infringement of a trademark right as a function of overall similarity group level and patriotism level.
The results of the present study provide the following theoretical and hands-on implications.
The theoretical implications of the present study first include that an asymmetric similarity decision as a function of typicality gap in similarity perception of brand marks was investigated to appear differently depending on directionality of the comparison. Based on this, presentation of a theoretical basis for comparison direction of similarity such that comparisons should made from the side of a low typicality to that of a high typicality may be considered to have significance in the decision of infringement upon a trademark right.
Secondly, the perceived similarity decision for brand marks has demonstrated the effects before and after presentation of context. For the similarity decision per case, in the case of before context presentation, the perceived similarity of brand marks is purely determined, and an attribute similarity was investigated to be perceived more similarly when the similarity between brand marks is determined by causing the effect of magnifying(+) or diluting(-) of common attributes between the two alternatives as
compared with overall similarity. Also, in the case of after context presentation, the results different from those before the context presentation could be affirmed to appear in determination of perceived similarity. As the weight values for brand mark attributes between the two compared alternatives are controlled by the importance of attributes as a result of context presentation for social situations such as infringement decision upon a trademark right. Namely, in determination of perceived similarity, the effects before and after context presentation could be demonstrated. In particular, the present study has the significance as a demonstrative study which presented differentiated effects on the infringement decision upon a trademark right from the viewpoint of variables such as typicality and similarity of a brand mark, thinking style, and patriotism unlike the existing studies focused on case bases of infringement upon a trademark right involving determination of similarity status.
Based on the results of the present study, the following hands-on implications may be found.
First, since the intellectual property right system follows basically the territorial principle, there is a limitation where trademarks or intellectual property rights of its own country are favorably examined when disputes occurred on infringement upon a trademark right or intellectual property right. Albeit not desirable, response measures should be prepared and always be considered when disputes are raised.
Secondly, as presented in our introduction, there can be debates as to why LG does not respond whereas Apple takes a prompt response in the dispute case of the trademark right raised as Fangguo Foods of China added goods(lap top, computer, software). However, if we consider this from the aspect of a marketing strategy, the strategy of non-response to the second mover can be rather effective in the case of the front runner. Namely, if the front runner responds to the lesser-known second mover, exposures by acquisition of attention for the second mover's brand mark are realized, producing the result of only advertising the second mover's brand mark. Consequently, if infringement decisions for disputes on a trademark right are to be made only in the Chinese market, errors of highlighting the second mover for media and public necessarily by global exposure to press should not be committed.
Thirdly, the case of undergoing stages of planning and design by making the first mover's brand mark as a motif is general, when a brand mark is developed.
Hence, in a design approach, measures of searching for methodological tools capable of avoiding similarity should be provided by adjustment of the weighted values for attributes also in the design of a brand mark as the elements of common attributes which can be derived as an effect of similarity perception are subjected to avoidance design in patents.
A well-made brand mark becomes a valuable intangible asset controlling the image of the business. Businesses are utilizing trademark rights as a powerful means to protect the value of an intangible asset. We often see cases of being led to dispute cases for trademark rights due to indiscriminate imitation of brand marks by second movers. The following dispute case was noted in the present study.
In the past September, 2011, Apple Company pointed out through a law firm in Beijing that 1)the brand mark of Sichuan Fangguo Foods Company was similar to the mark of Apple Company and 2)the pronunciation of ‘Fingguo’ as Apple's name in China was similar to that of ‘Fangguo’. Apple Company presented two conditions for dispute resolution to Fangguo Company of China. The first was to “Immediately remove the leaf”, and the second was "Retract trademark registration from goods" as a competing area with Apple Company. The point requiring our attention here is the first condition.
When inferred from the first condition, Apple Company has presented the leaf as a part of the brand mark of Apple Company as the decision criterion for similarity of brand mark. Meanwhile, an IT-specialized medium (9to5mac) pointed out that the brand mark of Fangguo Company was similar to that of LG rather than to that of Apple Company. Combining such a series of articles, the determining criterion for similarity can be seen to be mutually different between the US business of Apple and the Chinese business of 9to5mac. The author came to have questions such as: “Is the response method of Apple Company really desirable? Or else, LG?”, “Is the perceived decision of similarity really the same as the decision of similarity for infringement upon a trademark right?”
Thus, the primary objective of the present study is to consider the effects of brand marks on the perceived similarity and decision of infringement upon a trademark right, based on the case raised above. The effects of typicality of and thinking style for brand marks as well as variables due to patriotism have also been considered. Therefore, the present study is composed largely of 3 parts, with the study results being as follows.
First, the phenomenon of asymmetric similarity decision for a brand mark was shown to be varied by the difference in typicality of a brand mark. Namely, whereas the phenomenon of asymmetric similarity decision for a brand mark appeared in the case of a large difference in typicality, the phenomenon of asymmetric similarity decision for a brand mark was not observed in the case of a small difference in typicality.
Secondly, a difference in the perceived similarity decision was observed differently for the two brand marks presented per case.
Thirdly, the perceived similarity decision for brand marks was controlled at a statistically significant level by thinking styles. Namely, comprehensive thinkers rather than analytical thinkers were shown to evaluate the overall similarity more highly. Whereas the overall similarity decision for the two brand marks was shown to be higher between Fangguo and LG than between Fangguo and Apple according to the comprehensive thinkers while showing a significant difference, the overall similarity was shown to be higher between Fangguo and Apple rather than between Fangguo and LG according to the analytical thinkers while showing no significant difference.
Fourthly, the perceived similarity decision for brand marks was affirmed to appear higher in attribute similarity than in overall similarity.
Fifthly, the overall similarity was shown to have a positive(+) effect on the probability of infringement upon the trademark right.
Sixthly, the decision of infringement upon the trademark right was controlled by patriotism level on a statistically significant level. Namely, if the patriotism level is high even for the group which determines the overall similarity of a brand mark to be low, the infringement upon a trademark right was shown to be determined higher as compared with the group of a lower patriotism level. Such decision of infringement upon a trademark right was also shown to be different depending on the patriotism level per country.
When these are combined, a significant difference was observed in the decision of infringement upon trademark rights in the US only between Fangguo and Apple. Namely, irrespective of the (high/low) level of overall similarity decision for brand marks (Fangguo vs, Apple), the group with a high level of patriotism was shown to determine the infringement upon the trademark right between Fangguo and Apple in be higher in both groups considering Fangguo and Apple to be similar as a whole.
Meanwhile, in Korea, a significant difference in the decision of infringement upon trademark right was observed only between Fangguo and LG. Namely, even the group considering the overall similarity to be low was shown to determine the infringement upon the upon the trademark right between Fangguo and LG to be higher as compared with the group having low patriotism, if the patriotism level is high. In China, on the other hand, no difference in the decision of infringement upon the trademark right was observed between Fangguo and Apple and between Fangguo and LG in terms of the decision on infringement of a trademark right as a function of overall similarity group level and patriotism level.
The results of the present study provide the following theoretical and hands-on implications.
The theoretical implications of the present study first include that an asymmetric similarity decision as a function of typicality gap in similarity perception of brand marks was investigated to appear differently depending on directionality of the comparison. Based on this, presentation of a theoretical basis for comparison direction of similarity such that comparisons should made from the side of a low typicality to that of a high typicality may be considered to have significance in the decision of infringement upon a trademark right.
Secondly, the perceived similarity decision for brand marks has demonstrated the effects before and after presentation of context. For the similarity decision per case, in the case of before context presentation, the perceived similarity of brand marks is purely determined, and an attribute similarity was investigated to be perceived more similarly when the similarity between brand marks is determined by causing the effect of magnifying(+) or diluting(-) of common attributes between the two alternatives as
compared with overall similarity. Also, in the case of after context presentation, the results different from those before the context presentation could be affirmed to appear in determination of perceived similarity. As the weight values for brand mark attributes between the two compared alternatives are controlled by the importance of attributes as a result of context presentation for social situations such as infringement decision upon a trademark right. Namely, in determination of perceived similarity, the effects before and after context presentation could be demonstrated. In particular, the present study has the significance as a demonstrative study which presented differentiated effects on the infringement decision upon a trademark right from the viewpoint of variables such as typicality and similarity of a brand mark, thinking style, and patriotism unlike the existing studies focused on case bases of infringement upon a trademark right involving determination of similarity status.
Based on the results of the present study, the following hands-on implications may be found.
First, since the intellectual property right system follows basically the territorial principle, there is a limitation where trademarks or intellectual property rights of its own country are favorably examined when disputes occurred on infringement upon a trademark right or intellectual property right. Albeit not desirable, response measures should be prepared and always be considered when disputes are raised.
Secondly, as presented in our introduction, there can be debates as to why LG does not respond whereas Apple takes a prompt response in the dispute case of the trademark right raised as Fangguo Foods of China added goods(lap top, computer, software). However, if we consider this from the aspect of a marketing strategy, the strategy of non-response to the second mover can be rather effective in the case of the front runner. Namely, if the front runner responds to the lesser-known second mover, exposures by acquisition of attention for the second mover's brand mark are realized, producing the result of only advertising the second mover's brand mark. Consequently, if infringement decisions for disputes on a trademark right are to be made only in the Chinese market, errors of highlighting the second mover for media and public necessarily by global exposure to press should not be committed.
Thirdly, the case of undergoing stages of planning and design by making the first mover's brand mark as a motif is general, when a brand mark is developed.
Hence, in a design approach, measures of searching for methodological tools capable of avoiding similarity should be provided by adjustment of the weighted values for attributes also in the design of a brand mark as the elements of common attributes which can be derived as an effect of similarity perception are subjected to avoidance design in patents.
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