Brand as Legal Asset: Trademark Law and the Architecture of Brand Protection Strategy in Contemporary Marketing

Abstract

Abstract: Marketing scholarship is the thinking that regards the brand as an intangible asset that is created by establishing a consistent position, associative memory structures and trust of the consumer. Signs and associations that overlap in their purport constitute a “substantial” copyrightable property right according to law. The paper explores at the intersection of the two fields Indian trademark law as the legal tool that has been used to protect, license and enforce brand equity created upon marketing. It outlines the statutory framework of the Trade Marks Act 1999, the doctrinal test for deceptive similarity posited by the Supreme Court of India and the enhanced restrictions accorded well-known trademarks and trade dress before exploring how these doctrinal markers apply to common marketing strategies: brand naming and clearance, co-branding and licensing, comparative advertising and influencer marketing. Finally it examines new or less well-litigated issues algorithmic keyword advertising, generative-AI brand content and virtual goods / metaverse items as yet poorly addressed by existing doctrine. The paper culminates with a holistic brand/legal audit model designed for marketing and legal use.