Chilean social media blazed with “Miel Gibson”. On one hand, the defenders of Johanna Agurto, a teacher who let her imagination run wild to transform her suburb entrepeunership into a hit and bring legitimate support to her family, something especially difficult in a pandemic, that was facing the rule of law and, in passing, to the “imperialism of the great of always”. On the other, few defenders of the Australian actor Mel Gibson, whose image characterizing “Brave Heart” appeared in some pots of honey, sold thousands of kilometers from Australia.
The teacher understood perfectly what the small fairs of the Middle Ages who sold wool, oil, honey, cheese and jams had visualized: “to place a distinctive sign or brand on their products to distinguish them from those of their competitors and allow the consumer to return directly to that brand ”.
But she ignored part of the equation: civil law and industrial and intellectual property laws establish the exclusive and excluding right for the owner or holder of a trademark, its name and personal image or the image of the fictitious character represented, to use, to enjoy and to dispose of it.
The issue exceeds the trademark and, even, Intellectual Property. If Mel Gibson does not have his name registered as a trademark in Chile, this does not entitle anyone to use, without his prior consent, his full name. Adding the letter “i” to transform “Mel” into “Miel” is ingenious to bridge the gap between the name and the product, but it is not enough justification for using in trade a name that only belongs to its owner.
Of course, it is advisable and even necessary to create a brand to distinguish the products I manufacture and sell, to differentiate them from others on the market and to build customer loyalty. However, it is different “to grow my tomatoes on land that doesn’t belong to me, without asking the owner for permission to do it” or “to use the neighbor’s bicycle for the distribution of my products without his permission”.
In the same way, the name Mel Gibson, whether registered or not in Chile as a trademark, belongs to whoever wears it and is an attribute of their personality. So it is the image of his face playing “Brave Heart”, used on the labels of honey pots.
Mrs. Agurto, following the medieval merchants to distinguish her honey from that of another producer, should have created her own or new brand, without “appropriating” – not even for a neighborhood business – the name, the brand and the image of a third party.
Attributes of personality and trademarks are a total and complete expression of the private property right, as well as a plot, a house or a bicycle, being inable to use or dispose of them, without the express prior permission of their owner or legitimate headline.
If someone ventures for even a second “how unfair is the Chilean law that does not allow a poor entrepreneur to carry out her business”, without spending another second it should be clear that the Constitution protects Property Rights, the Civil Law protects the attributes of personality, the Industrial Property Law grants exclusive and excluding rights to the owner of a registered trademark for using in trade, and that the Intellectual Property Law (Copyright) will grant equal rights about the creations of the intellect.
Likewise, in the hypothetical case that an Australian wool producer used the name and image of “don Francisco” (chilean TV host) to sell his products in Australia, he would face a firm and clear rule of law, that would force him to change his brand.
Therein, Matías Muchnick, founder of “The Not Company” or “NotCo” -firm that also set on fire social networks by achieving that, from the same faraway land where honey in comment is produced, Jeff Bezos, founder of Amazon looks at it and joins its recent capital increase – said: “The brand is the individual behind what you do, therefore, it is as relevant as the product you sell. Companies that don’t invest in the brand, it is as if they don’t invest in people. … We invest in it, because it transmits who we are as a company, what is our tone of voice ”.
Just as honey is a product of intrinsic nobility, “Not” products are the result of the equation “vegetable raw materials + human ingenuity + teamwork + mathematical application + cutting-edge technology + strong marketing + a commercial brand = artificial production of natural food”.
The brand, in this case, is not one of the equation’s elements , but also one in which “The Not Company” capitalizes on its successes, increasing daily the value of the company and allowing it’s quick approach in major business leagues and to the most demanding markets.
The teacher can sell a high quality honey, but she will have to start almost from scratch by creating a new brand to distinguish her product from others, while “NotCo” can add to its portfolio that already includes “NotMayo”, “NotIceCream” and “NotMilk “, a hypothetical product” NotMiel “or” NotHoney”, transmitting to the Chilean or Californian consumer, by merely using a brand, a huge amount of information related to the producer, his conception of “healthy food” and the quality expected of the product. Very quickly the consumer will conclude in his unconscious: “If I am already part of the Not community and buy Not products, I want to try the new member of the Not family and I know that my experience will be as good as the previous ones”.
How much time saved this means for “The NotCo” when placing its new product on the market, increasing the company’s value and strengthening the communication channel with its consuming public, eager for new launches.
Returning to Muchnick’s words: “Companies that don’t invest in the brand, it is as if they do not invest in people”.
Every entrepreneur and manager should always be very clear about that, along a new product, a good brand, created and not copied, must be thought very carefully, in addition to its registration, not only to be a bridge between producer and consumer, but also to capitalize the enormous effort involved in undertaking and launching new products to the market.