The First Premise: You’re an excellent salesperson if you can sell a comb to someone bald

In sales prowess, true excellence emerges when one can effortlessly market a comb to someone bald. It exemplifies the art of persuasion, showcasing the ability to turn an unconventional scenario into a successful transaction. This unique skill highlights a salesperson’s adaptability and underscores their mastery in finding value and appeal in unexpected places.

In the dynamic landscape of industries, the role of sales has transcended its traditional boundaries to emerge as a pivotal force driving success. Once considered a mere function, sales have now evolved into a robust industry in its own right. The significance of sales extends beyond the act of transaction; it is the lifeline that connects businesses with their customers, forging lasting relationships and propelling economic growth. In the contemporary marketplace, the intricacies of sales involve sophisticated strategies, data analytics, and customer relationship management, making it a specialised field that demands expertise. As businesses navigate the competitive terrain, the sales industry plays a transformative role, influencing profit margins and shaping the fabric of commercial landscapes worldwide.

The Second Premise: Advertising is designed to generate a sense of urgency, prompting consumers to feel a compelling need to purchase the advertised product

In the symbiotic realm of commerce, sales and advertising form an inseparable duo. With its persuasive artistry, advertising crafts a narrative transcending mere product promotion; it weaves a tale of desirability and necessity. Through captivating visuals and compelling messaging, advertising sparks the flames of consumer interest, setting the stage for the pivotal role of sales. Sales, in turn, take the baton, converting that interest into tangible transactions. Together, they create a dynamic synergy, where the artful allure of advertising seamlessly blends with the strategic execution of sales, propelling products into the hands of eager consumers.

In the intricate dance of commerce, advertising, marketing, and sales converge as powerful instruments shaping the collective psyche of humanity. With its artful persuasion, advertising plants seeds of desire, influencing perceptions and fostering a sense of need for products or services. Marketing orchestrates a symphony of strategies, channelling these desires into cohesive campaigns that resonate with diverse audiences. Meanwhile, as the final frontier, sales transform latent interest into concrete transactions. Together, these tools transcend transactional boundaries, sculpting the intricate landscape of human preferences, aspirations, and purchasing behaviours. In this holistic interplay, they profoundly impact the intricate tapestry of human thought and action, moulding the very essence of our consumer-driven society.

The Mute Question

The cultivation of desire permeates all, creating a hype loop in product demand for those who either lack the need or the means to afford them. This particular group cannot be categorised as customers. Nevertheless, these individuals, deemed ‘non-prospective customers,’ harbour the desire to possess products for which the seeds of desire were planted. How should the germinated desire seeds within this group be addressed for justification?

Desire for More

The seed of desire exerts a pervasive influence, creating an artificial sense of urgency to acquire items that are frequently neither essential nor financially feasible. The industry responds to individuals’ desires by marketing and selling products under the influence of the ‘fake demand’. Profit motives propel a perceived need to purchase more than necessary or superfluous items. A segment of individuals, unable to afford the coveted products, experiences a deep yearning for them. Cyclically, this yearning fuels another industry known for producing pirated products, capitalising on the goodwill associated with the ‘original’ items as a springboard for marketing their imitation products.

The Mother of Imitation

Compared to generic counterparts, IP-embedded products undergo more vigorous advertising, marketing, and sales efforts. According to 2019 data from the OECD, international trade in counterfeit and pirated products reached a staggering US$464 billion, constituting a mere 2.5% of legitimate international trade. Despite this seemingly modest percentage, it starkly contrasts with the vast number of individuals yearning for these products yet unable to afford them. Notably, the OECD’s data is limited to international trade, and countries like India and China, boasting substantial domestic markets and the world’s most significant populations, are not fully represented. Affordability transcends national boundaries and the dichotomy between developed and developing nations. The same OECD report estimated that counterfeit and pirated goods worth US$134 billion were imported into the EU in 2019, comprising 5.8% of EU imports. These products cater to the EU market, addressing the unmet desire to acquire authentic items. Therefore, the production of counterfeit and pirated goods fulfils the desire for unaffordable products through imitation.

The Damage

The Harvard Law Review published an article titled ‘Trademark Injury in Law and Fact: A Standing Defense to Modern Infringement‘ (Vol. 135:667), which dissects trademark infringement into ‘injury in law’ and ‘injury in fact.’ The argument posits that most trademark infringement lawsuits hinge on ‘legal injury,’ sidelining the importance of ‘injury in fact.’ As common-law countries, India and the US require statutory injury grounded in ‘injury in fact.’ A critical, unexplored facet involves invading people’s privacy by inundating their peace with artificial desires for unaffordable products—particularly those beyond the reach of prospective buyers. These individuals exist on the periphery of the target market. The trade-in imitated products fulfil the unmet desire for the authentic, creating a commercial transaction that, despite being acknowledged as imitation, is authentic in its exchange. The harm inflicted by original IP-embedded products, propelled by advertising, marketing, and sales techniques, inflicts immeasurable damage on the masses, surpassing the ‘legal injury’ they may endure.

The counterfeit and pirated products market inadvertently becomes a conduit for free advertising, enhancing the brand value of the original IP-embedded products.

The faceless and dispersed masses, yearning for IP-embedded products beyond their means, are an integral part of the society that established IP statutes to protect the industry’s intellectual property rights. There is neither any statute to protect their rights nor the capacity to fight for the breach of their human rights against the influential IP stakeholders; however, the contrary is just the opposite. However, this same society also crafted the constitution, serving as the fundamental legal framework for the nation. The harm wrought by the industry’s cultivation of desire for unaffordable and unnecessary products inflicts a more profound injury and encroachment upon constitutional rights than the alleged infringement based on the tenuous grounds of ‘legal injury.’

The Ethical Resistance

A few European countries have prohibited advertisement breaks during children’s television programs. Data science facilitates the automated delivery of targeted advertisements on the Internet and television, effectively reaching potential customers and specific audiences. Can this technology be employed conversely? The ‘injury in fact’ can be more accurately calculated to build a justified infringement case with the concept of ‘legal injury.’ Intellectual Property (IP) represents an asset in the knowledge economy. However, the economy and markets are integral to human society and designed to serve the greater good. Upholding respect for IP rights demands ethical restraint from IP stakeholders when enforcing their rights, emphasising the importance of exercising caution in such matters.