Trademarks and Consumer Protection

A trademark is of high importance in protecting the consumer. Its significance is no less than that of labels placed on consumer goods or expiration dates indicating the product’s shelf life, as it is the optimal means of distinguishing offered goods and helps consumers choose according to their needs. It is one of the most important intellectual property rights in the modern era. For consumers, it provides protection by indicating the quality of goods or services, and for traders, manufacturers, craftsmen, and service providers, whether individuals or legal entities, it serves to distinguish goods, products, and services.

Failure to legally protect trademarks results in the proliferation of counterfeit goods in the market, which causes harm to consumers, manifested as follows:

1. Material damage: Occurs when a consumer is deceived and buys a product believing it to be genuine, only to find its quality differs from what was expected, having paid a high price for a non-original product.
2. Health damage: Since consumers seek high-quality goods, counterfeit products may adversely affect their health, particularly in the case of health-related products, which are the most consumed and demanded.
3. Psychological damage: If a trader deliberately imitates a trademark to market their goods, the consumer pays a high price for inferior quality, resulting in loss of trust in the market. This leads to irrational and disorganized consumption and a market devoid of ethics, where the consumer suffers the most.

Types of Trademark Protection:

A. Criminal Protection: Criminal protection involves penalizing anyone who infringes upon a trademark, whether through forgery, imitation, or other crimes stipulated in the trademark law. These crimes include:

1. Forgery or imitation of a trademark causing public deception: This is the principal crime concerning trademarks, as it misleads the public into believing they are purchasing genuine products. Complete replication of the trademark is not required; copying its essential and distinctive elements in a way that misleads the public suffices. Actual use of the forged mark is not a necessary condition for establishing the offense.
2. Use of a forged or counterfeit trademark with intent to deceive: This occurs when a person knowingly uses a forged or counterfeit trademark with the intent to mislead others. The perpetrator must be aware that the mark is forged or counterfeit, and its use must be for commercial purposes on similar or identical goods or services, leading to public confusion about the origin of the products.
3. Usurping another person’s trademark: This occurs when someone places another person’s trademark on products or services without their consent, usually on similar goods, intending to sell them as if they were the original owner’s products or services.
4. Displaying, selling, or possessing goods with a counterfeit or forged trademark for sale: This involves selling, offering for sale, or possessing goods marked with a counterfeit or forged trademark with the intent to sell. Knowledge of the counterfeit mark by the offender is required.
5. Use of an unregistered trademark: This occurs when a person knowingly uses a trademark that is not registered, either because registration is prohibited, the application was rejected, or there was no intention to register it.
6. Falsely claiming trademark registration: This occurs when a person falsely claims registration of a trademark on commercial documents, potentially leading consumers to trust and rely on the product.

B. Civil Protection: Civil protection allows the trademark owner to claim compensation for infringement based on civil liability rules, which hold anyone causing harm to another responsible for compensation. The trademark owner can file a civil lawsuit against anyone who imitates, forges, distorts, or otherwise unfairly competes with their trademark to seek compensation.

Unfair competition claims provide broad civil protection for trademarks, legally grounded in Article 48 of the Trademark Law, which states: "Anyone harmed by violations stipulated in this system may claim appropriate compensation from the violator." This allows interested parties to approach the competent authority to seek redress and compensation. The authority must consider the requests of the harmed party after verifying the conditions of unfair competition claims.

The trademark system identifies six main offenses to protect traders initially and consumers from deception. To claim compensation based on unfair competition, civil liability elements must be present:

1. Fault: The infringement of the trademark, whether by imitation or forgery.
2. Damage: Damage grants the right to claim compensation, even if the harm is potential rather than actual.
3. Causal link: The damage must result directly from the trademark infringement.

Protecting a trademark is an ethical obligation that emphasizes the principle of legitimacy in dealings between producers and consumers. The harm resulting from trademark violation to the consumer begins with awareness of the mark, enabling recognition, recall, and identification of its elements, thereby increasing familiarity with the brand. In summary, trademark protection is essentially a means of protecting the consumer.

References:

1. Mohamed Mahmoud Al-Kamali, The Role of Trademarks in Consumer Protection, Consumer Protection Symposium in Sharia and Law, College of Sharia and Law, UAE University, 1998.
2. Basma Boubashtoula, Legal Protection of Trademarks, Master’s Thesis, Faculty of Law and Political Science, University of Mohamed Lamine Debaghine, Setif.
3. Ahmed Makhlouf, Intellectual Property Rights in the Saudi System, 3rd Edition, 2020.
4. Abdul Razzaq Najib, Intellectual and Commercial Property Rulings in the Saudi System, 3rd Edition, 2020.