Black Friday is coming! Phrase used as commercial strategy, but not considered as distinctive sign
The famous Black Friday, name by which it is known the following day of Thursday of Thanksgiving and coined in the United States of America, is the day that marks the beginning of the Christmas shopping, in which most of the merchants attract their customers through the discounts they make to their products and/or services.
In Guatemala, as well as the rest of Central America, in the last 5 years this day has taken its boom, (which is important to mention is not a holiday) because, small and large establishments have joined to offer discounts to their customers, becoming a characteristic day in which you can find great deals.
However, could the term Black Friday be protected as a right of Intellectual Property, specifically as a trademark? To this end, it is important to verify that the term does not fall under any of the causes indicated in the Article 20 of the Industrial Property Law of Guatemala, which regulates inadmissible trademarks for intrinsic reasons.
On this occasion, two assumptions are mentioned in which the trademark falls:
Verbatim e) states: “That it consists exclusively in a sign, an indication or an adjective that can be used in commerce to qualify or describe any characteristic of the product or service in question, its translation into another language, its orthographic variation or the artificial construction of non-registrable words“. When analyzing the phrase BLACK FRIDAY, we can conclude that it not only indicates the day, but also alludes to a special event, since throughout history some days have been named as such, to mark an important event.
On the other hand, the literal d) regulates: “That consists exclusively in a sign or an indication that, in the scientific, technical or current language or in the commercial uses of the country, is a common or usual designation of the concerned product or service“. This is the cause that has more weight, it is enough to see the advertising of the establishments to verify that the phrase has become of common use to name this day and therefore no one can have an exclusive use of it, since doing it would grant a privilege to a single person or entity, giving it a competitive advantage over others, until it falls into a monopoly.
Consequently, it can be determined that the phrase does not meet the requirement of distinctiveness to be considered as a trademark. However, as a marketing and advertising tool, it certainly achieves its goal, because nobody manages to escape from a small purchase made on this day!
Elizabeth Flores Barrios
Associate
García & Bodán
Guatemala