Friday, 11 February 2011

Who'll buy a business with no trade mark?

From Ireland comes this cautionary tale (though it could equally have come from just about anywhere): the publishers of the Sunday Tribune newspaper, Tribune Newspapers Plc, went into receivership on 1 February 2011. Publication of the paper and its online edition (what should we call an online newspaper? A newsnonpaper?) was suspended while the administrators tried to find a buyer for the business. Last Sunday, the Irish Mail on Sunday produced a special edition with a front page layout described by The Guardian as a "fake" Sunday Tribune front page.

That shouldn't be more than a minor irritant, surely. Can't the administrators sue for trade mark infringement? Well, no, they can't, for the simple reason that the Tribune didn't have a registered trade mark. Like lots of other people and companies. So they could sue for passing off or put together a somewhat contrived claim for copyright infringement (while simultaneously rushing off to the trade marks registry with an urgent application), but that doesn't really do the job. Anyway, what administrator is going to stump up the price of a passing off action, perhaps the most expensive form of litigation known to humankind?

Quite apart from the direct damage done by the Irish MoS, the Tribune must have suffered considerable indirect damage. The search for a trade purchaser is made rather more difficult now the world knows the paper's title isn't protected, or not very well. There might be questions about the conduct of the directors of a plc who allow this sort of situation to arise (though I couldn't possibly comment on Irish company law). Trade mark registrations might be expensive to get (though not very, in the great scheme of things) and involve the owner in continuing expense (watching services, oppositions, renewals, and indeed infringement actions) but businesses need them, and badly. The law enables you to obtain this protection: it's desirable, and for many essential, to take up the offer.

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