UNDERSTANDING THE FUNCTIONS AND RATIONALE OF TRADE MARK, FROM THE MOVIE, ‘PK’
SEASON 1
EPISODE 1 – 27th June, 2020
Introduction
In the 2014 movie ‘PK’, a humanoid alien comes to the planet Earth (aka, ‘Gola‘) for a research. Unfortunately, the alien gets stranded on Earth after losing his communication device to connect to his spaceship and eventually ends up exploring different ways of human behaviour, set in India, in terms of fashion, trade, religion, communication, etc..
While his stay on Earth, this alien (better known as the character, ‘PK’ in the movie) keeps asking one very pertinent question: “Thappaa Kahaan Hai?” (i.e., Where is the mark?). The bigger question is, what is the need to ask for that?
Mark/ Thappaa
In the course of this film, on his quest for finding the communication device, PK is led to believe that it is only the God who can provide him his device. He starts practising Hinduism (and later Sikhism, Christianity and Islam), in his attempt to find “God”, but to no avail.
As the God did not perform his part of contract, by helping him find the device, despite taking consideration in the form of religious practices, PK goes to the police station to lodge a complaint.
How did the cops identify, who is the complainant? They take out the wallet PK had stolen, and look at the visiting card inside. Assuming, the information on the card to be correct, the cop identifies PK to be a Christian, and asks him to visit a Church, instead of Temples.
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Thus, the most basic function of any mark is to ‘Identify’. A ‘mark’ identifies some characteristic of the matter/material it is affixed on. For example, ‘ISI’ mark is a ‘mark’ that certifies that a product is of a certain standard. It is affixed on a product. It demonstrates a characteristic. However, it is not a trade mark.
Trade Mark and its Primary Function
Subsequently, PK finds out that there are multiple religions on Earth and PK had no clarity as to which religion he belongs to. Obviously, ‘PK’ had no way of finding this out by looking at himself, as he had come from a different planet. Thus, he decides to figure out, how humans identify their religion. He does this by checking out newborn babies. He essentially was looking for the ‘Religion label’ to identify ‘source’ and ‘origin’ of humans.
A ‘trade’ is an action of buying and selling of goods. Accordingly, a ‘trade mark’ means an identifier in relation to buying and selling of goods. In the year 1916, the United States Supreme Court defined the primary and proper function of a trade mark in the following words: “to identify the origin or ownership of the goods to which it is affixed.”[1]
This is exactly what, ‘PK’ is trying to do in this particular scene. He is trying to identify the Company to which the good belongs to. However, this function of ‘trade mark’ is considered as an orthodox function. The developed modern law of ‘trade mark’ is slightly more evolved on primary function of ‘trade mark’.
Under the modern law of ‘trade marks’, it has been recognised that a consumer only seldom knows the origin or source of the goods. A popular ‘trade mark’ is infringed even if the consumer does not know the origin of the ‘trade mark’, but knows that ‘trade mark’. For example, a brand such as ‘Sunsilk’.
A ‘trade mark’, thus, indicates, not only that the article in question comes from a definite or particular source (the characteristics of which or the personalities connected with that, are specifically known to the consumer), but also that the goods in connection with which it is used, emanates from possibly the same (anonymous) source, or have reached the consumer through the same channels as certain other goods that have already fulfilled consumer satisfaction bearing the same trademark.[2]
In essence, function of a ‘trade mark’ is to identify a product or a service as coming from a single source, having a background of satisfactory performance, and thereby stimulating a future purchase by the consumer. It has to function as the agent of the proprietor to sell the goods or services in respect of which it is used. A consumer need not know the origin or source of the said brands for a ‘trade mark’ to perform its function.
Secondary Functions of Trade Mark – Saving of Time, Energy and Cost [3]
As PK was not able to find the ‘mark’ (“Thappa“), he is not able to find the relevant religion of a baby. Eventually, PK ends up worshipping Gods from other religions (Sikhism, Christianity and Islam) and, thus, wasting time, money, and energy in order to find its device.
Thus, there are other functions of ‘trade marks’. ‘Trade Marks’ help consumers in making purchasing decisions quickly, as they are aware that the product bearing the trade mark is of a particular quality, tried and tested, and can be purchased instantly. This leads to saving of time, money, and energy.
Imagine a situation that there is no popular ‘trade mark’ for a particular category of goods, for instance, garbage bags. A consumer, like PK, will end up testing different types of products (with many of them not up to his satisfaction or meeting his reasonable expectations) to finally choose one, which appeals to him the most. The chosen one performs the function of a ‘trade mark’. However, consumer ends up spending a substantial amount of time and money in reaching to the said conclusion.
There could be another possibility. For products such as garbage bags, a consumer might be least interested in ‘trade mark’, but more interested in price, size of the bag, quantity of bags, biodegradability etc. In such a situation as well, some products may pass the test of consumer satisfaction not on quality, but on other factors. Thus, a subsequent purchase herein is also based on consumer satisfaction. The same may not be of a great quality, but acceptable for a purchase, based on the price. The ‘trade mark’ herein also performs function of a ‘trade mark’. The subsequent purchases of products bearing the same mark leads to savings of cost.
Rationale of Trade Marks
In a subsequent scene in the film, PK demonstrates that identification of religion of one individual is dependent on the clothes worn by the said individual. If the clothes are interchanged, a person will confuse one religion for another. Thus, it is the difference in perception by ear and eye which is the rationale of trade marks. If the proprietor of a trade mark does not want to differentiate his/her products from that of others, there is no need for a trade mark. However, as the proprietor of genuine product would always prefer to distinguish his products from that of others, to create a differentiation (so as to avoid calling a wrong number), a label or mark is put on the products.
Capitalism and public interest both require such a difference. A proprietor invests time, money, energy, labour on developing a business and is thus entitled to the fruits of his/her expenditure. He/She, thus, wants that difference to remain in terms of perception. Without the mark, there will be no difference in choosing between an inferior product and a satisfactory product.
In fact, there would not be any incentive for the proprietor to invest in the promotion or in the quality of the mark, thus leading to degradation of quality.
Conclusion
To summarise, the function of a ‘trade mark’ is to create a stimulation of purchase in the mind of the consumer with an aim to derive a satisfaction from a product which is assumed to have a single source. A ‘trade mark’ has to perform a function to attract a consumer to the goods so much that they leave a competitor’s good which may be equally good, just to obtain that elusive satisfaction or status of consuming products from a particular brand. This is clearly evident from the following scene of ‘PK’ where a mere raw depiction of a particular mark in a particular manner ensured horde of students lining up and spending their money only on the basis of a ‘mark’.
It is not unusual to see, consumers waiting for hours outside a particular restaurant or eatery to consume their signature dish. While at the same time, the same dish may be available across the road in some other restaurant/ eatery of the same or even better in quality. Despite that, a consumer waits in a queue to eat at that popular joint. This is the function of a ‘trade mark’. This is the asset which is sought to be protected.
How do consumers recognize their favourites? They ask themselves sub-consciously: “Thappaa Kahaan Hai”.
[1] Hanover Star Milling Co. v. Metcalf; 240 U.S. 403, 412 (1916)
[2] Frank I Schechter, “The Rational basis of Trademark Protection”, Harvard Law Review, Vol. 40, No. 6 (Apr., 1927)
[3] Qualitex Co. v. Jacobson Prods. Co.; 514 U.S. 159 (1995)
[4] Images from the film ‘PK’, Vidhu Vinod Chopra and Rajkumar Hirani, 2014
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