Wednesday, 21 December 2011

Do anything you want to do

The Internet is a highly democratic medium. Anyone can publish whatever they like, subject to the laws of libel, trade mark and copyright infringement, and trade descriptions (no longer under that evocative name), and other laws, none of which anyone can afford to enforce. Nor is there any quality control. Which is why you encounter rubbish like this:
For a trade mark to be successfully registered it must be a unique word or stylised word which is used to represent specific categories of goods or services.
The firm of solicitors who uttered that piece of nonsense should stick to doing whatever they do best, and not try to take trade mark work away from people who actually understand it. I am constantly appalled at the inaccurate material put out by lawyers trying to market themselves. In a rational world, prospective clients would reject that firm and seek out a lawyer with a more harmonious relationship with the English language, but that might assume critical faculties which our education system has not bothered to cultivate in its charges for many years.

It reminds me of an occasion, ten or twelve years ago now, when I took an unexpected call from my firm's professional indemnity insurers. They had received a claim from a high street firm which had applied to register a trade mark for a client: no search had been carried out, and when the application hit the rocks the client claimed against the solicitors. The insurers didn't know whether there was a hint of negligence in this, so enterprisingly they phoned someone they insured who might know. I was rather flattered. It all depended, I suggested, on the terms of the retainer: had they advised the client about searching? Certainly just because no search was carried out the solicitors could not automatically be said to be negligent - but it was a lesson to me in the importance of sticking to what you know. Given that I am doing an inordinate amount of employment law at present, it might be a lesson I ought to revisit, but it seems there's a firm of solicitors somewhere that needs to learn it too.

What does that sentence say? What's wrong with it? First, a trade mark cannot be unsuccessfully registered. Second, there are many signs that can be registered - successfully registered, indeed - other than words, stylised or otherwise, and certainly not necessarily unique. Are some little bits of patent law creeping in here? And third, even though a trade mark might be coming (as Mr Justice Floyd said in introducing a lecture I attended a few weeks ago) to resemble one of those multifunction tools one sees advertised in the Sunday supplements, I have never seen it suggested that a trade mark might be used to "represent specific categories of goods or services". Used to distinguish the sources of specific goods or services, yes, but if that is what the writer meant that is what the writer should have written. After all, using words to convey precisely one's meaning is the essential skill of the lawyer - isn't it? That, and knowing a bit of law.

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