Tuesday, 15 June 2010

Tip of the day: trade marks as designs

Not feeling very inspired today, having spent yesterday in the office dealing with a visit from our regulator. Why, I wonder, is it thought that professions need to be regulated? The answer, I fear, is that being a solicitor is no longer a profession, it is a mere business, and one cannot rely implicitly on the integrity of some of its members, so the majority have to submit to a level of control designed for the truly dishonest or incompetent.

Anyway, today - following on from my comments about passing-off law as a back-up where design protection fails (as design protection usually does) by highlighting one area where it will work the other way round. The design that makes up your trade mark could also be protected as a registered design. The requirements for a registered design are stiff: it must be novel and have individual character. Trade marks, by contrast, even get better as they get older. But a new business or product is likely to have a new logo, and if it functions as a trade mark it has distinctive character which is at least part of the way to individual character. A rebrand might produce some registrable designs, too, though here the stumbling block will be that the character of the new design will often owe something to the old one and 'individual character' might be hard to show. But it's easy (and cheap) to get a design on the register, and these days maximising your IP portfolio is often the name of the game.

For an example of how this might work, see here and here.

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