The property right accompanying the brand may be lost in various ways, such as non-renewal at the end of 10 years of protection or simply by renunciation of property rights, as well as a result of forfeiture, provided that the person who applied for it can prove such an occurrence.
Forfeiture may also be recognized by the degeneration of the trademark as a result of the inactive behavior of the brand proprietor in defending their property rights, and that the trademark has become a common name commercially and the name is recognized as a generic term designating goods of the same class. The same applies if the brand becomes deceptive insofar as it could mislead the consumer. Invalidity is the final cause of loss of use of the brand. If bad faith is proven at the time of filing or if the filing is made in violation of other property rights, such as the right to a name, the right to an image, copyright or any other intellectual property right, nullity may be pronounced.
Subsequently, an order of November 14, 20192 amended the substantive law and procedural rules applicable to product brands and services. This order notably sets out the contributions of the “brand package” and ensures the harmonization and modernization of French trademark law with the European Union’s trademark system.
1.1.3. The brand’s economic nature
As we have discussed, the origin of brands goes back to the time when Roman potters identified pots according to their workshop by marking them. The purpose of this practice was to identify the origin of the pottery. According to Gabler et al. (2009), this also helped to trace the trade routes followed by the pots coming from different western workshops; they could, in this way, even identify some of the large workshops that dominated the Pannonian market. It appears, from that moment on, that the distinction between production and items sold was made in a clear manner, without giving them a “commercial” meaning. It is understandable that the prerequisite for the modern vision of brands is the identification of the products made by the craftsmen, who were thus able to mark both their product and, above all, the ownership of their industrial production.
This notion of ownership is fundamental to the appearance of the brands we know today. This point was addressed by Jean-Baptiste Say (1972) in his treatise on political economy, based on the simple exposition of how wealth is formed, distributed and consumed. In Chapter XIV of his work, he clearly details the right to property. Thus, it appears, from this period, that one can attach industrial property to the talent of individuals. The obvious extension between industrial production and the product sold is consumption.
On the basis of the principle of consumption that determines the creations of producers in every country, Jean-Baptiste Say lets us understand that creation is induced by consumption, which, itself, enables production: production that will naturally be protected by a process that identifies the creator and the owner of this production. This notion of ownership attached to the product led to the appearance of the modern “brand”.
From this point on, we can question the materialization of the brand and the modalities of its appearance. The marking of products was ensured, in particular, by the appearance, on the products, of the name of the place of production or the name of the production plant; the name and its commercial use thus became the basis of the evolution of the brand concept. For his part, Ries (1998) conceptualizes the trademark from the relation of the name and brand. His approach consists of approaching the principle of uniqueness: “A brand name is nothing but a word in the mind, albeit a special kind of word. A brand is a noun, a proper noun which like all proper nouns is usually spelled with a capital letter.” This connection between brand and proper name suggests the gestation of the notion of “brand”.
Afterwards, we can see that the brand could be a name, but not only that. The name certainly makes it possible to make a distinction between the products; to this can be added distinctive signs. Le Mercator, the reference work for marketing specialists, gives a first definition: “A brand is a name and a set of distinctive signs that have power in the market by giving meaning to products and creating perceived value for customers and economic value for the company” (Lendrevie and Lévy 2012). The breakdown of this definition, taken up and commented on by Jacques Lendrevie and Julien Lévy, suggests that the brand has economic power in terms of value creation.
On the other hand, for the consumer, the brand has another dimension; it allows identification through a distinctive sign which carries values with which the consumer can identify. This ability to identify with a brand provides them with a mental reference point for their consumption habits. Other authors have studied this subject. Lacoeuilhe and Lewi approach this theme by emphasizing that “a brand is a mental reference point in a market based on tangible and intangible values” (Lacoeuilhe and Lewi 2007, p. 12). In the same vein, they stipulate that a brand makes it possible to distinguish products in a given market; it goes beyond the notion of image to convey a mental representation resulting from a complex perception of objectifiable elements and subjective sensations. Brand membership enables the consumer to consider that they are part of a club representing the values that represent them.
In an effort to define the brand, Aaker puts into perspective that “the brand is a distinguishing name and/or symbol (such as a logo trademark, or package design) intended to identify the goods or services of either one seller or a group of sellers, and to differentiate those goods or services from those of competitors” (Aaker 1994). In this framework, the author equates the brand to its place of destination and thus to the possible extensions of the brand, logo or packaging. This approach has the advantage of extending the brand’s territory. In his famous book Managing Brand Equity, he infers that, through these attributes, the brand represents value. In short, the representation of the brand makes it possible to communicate around an image that has a distinctive character for the consumer, but the brand is also an accounting and financial asset that represents value for the company that owns it.
1.2. Brand value and brand equity
1.2.1. Definition of the brand value concept
McQueen et al. (1993) argue that brand value is determined by its strength in the marketplace. This developed strength is used to determine whether or not the brand is dominant and to ensure market position. They have shown that the brand’s products will be purchased in larger quantities, over the longer term, more expensively than those of competitors and that they will better resist competitive attacks because of the brand’s strength.
Aaker (1994) and Keller (1993) consider the perceptions and behaviors of consumers in relation with the brand in their approach to measuring brand equity. Srinivasan (1979) uses consumer sentiment to define brand value, distinguishing between brand and product, and concludes that the brand has its own value independent of the product’s value. The author considers, in addition, that the brand allows the branded product to create value; it is a measure of the brand’s influence on the consumer’s purchase decision. Notoriety, whether spontaneous or not, and image evaluation are the main components of brand equity. Brand valuation depends on the consumer’s preference, who decides to choose this or that product based on their own perception of the brand.
Dobni and Zinkhan’s approach leads to the observation that “the perception of reality is more important than reality itself” (Dobni and Zinkhan 1990, pp. 110–119). The consumer’s perception of the product is the result of the brand image. Thus, the consumer’s purchasing behavior is guided by the message that will enable them to identify the product they are looking for. It is understandable that this notion developed by Dobni and Zinkhan originates from the message communicated by the company owning the brand. This could be considered as an indicator of brand strength according to a marketing perspective. Most