Monday, 13 June 2011

Trade marks: get them while you can!

Every business uses trade marks - distinctive signs to identify themselves to their customers or clients. The trade mark my just be the proprietor's name, but if the business found that either it couldn't use it, or someone else could use it as well, that would be unfortunate. At best. Disastrous, perhaps.

Stevens Hewlett & Perkins, the patent and trade mark attorneys, have a report on their website that brings home just how crucial this could be. Sussex County Cricket Club wanted to call a new walkway on their premises "The Walk Of Fame", but discovered that the name had already been registered by record producer David Courtney, who established his own Walk of Fame at nearby Brighton Marina nearly ten years ago. He offered to grant the club a licence to use the name, at a fee of £20,000 a year. They decided to go for a different name, expressing surprise that an everyday phrase should have been protected as a trade mark.

One should not be surprised at anything the trade mark system does these days. In a sensible trade mark system, the phrase without some addition ("Brighton" might suffice) should be unregistrable: it seems to me that it should fail any rational test for distinctiveness, but so diluted is the concept now that it hardly stops anything. The result is that localised usage can become a powerful exclusive right, for which substantial royalties can be demanded - coming close to trollery, IMHO. It is the law, not the trade mark owner, that's wrong: it simply should not allow this sort of situation to arise.

Unfortunately, this is a self-perpetuating inflationary process. Because this sort of thing can happen, someone else with a "trade mark" that should not be allowed anywhere near the register will apply successfully to have it registered - perhaps even being able to point to the precedent established by an earlier registration. And so another little bit of the great common of the English language will be enclosed, and trade mark law will have failed us again.

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