15. Registered Trade Marks
| Pages | 1375-1516 |
| Author | Catherine Colston,Jonathan Galloway |
Introduction
Trade marks are a source of information. They are the by-product of market
enterprise and marketplace competition. Trade marks identify goods and
services1 in the same way that names identify individuals and companies,
and have the advantage of being able to do so in attractive and
internationally recognisable ways. Increasingly, trade marks are used to
give products and services a ‘feel’ desirable to consumers in its own right.
The use of trade marks has a long history, from the marks used by potters
in Roman times, to the internationally known marks in use today, such as
McDONALD’s ‘golden arches’, the NIKE ‘swoosh’ or the name COCA-
COLA. The use, and the importance, of trade marks have flourished in a
changing commercial environment, one that has progressed from well-
known manufacturers supplying a local market, to today’s mass marketing
and international markets. The Industrial Revolution led to more goods
becoming available. In turn, a revolution in the means of transport (canals,
railways and roads, now extended to air transport) led to widespread and
long-distance distribution. The result was the development of a global
marketplace and international trade (including parallel importing). Allied to
this, the development of mass-marketing techniques (self-service shopping
and mail order catalogues, for example) and of new advertising media and
practices, emphasised and increased the use and numbers of trade marks.
Trade mark registration was first introduced in the UK in 1875. Today,
their proprietors consider trade marks to be of vital commercial importance
and, in recent years, companies have been encouraged to value these assets
on their balance sheets. One estimate values the COCA-COLA trade mark
at US$70 billion.
Development in the uses of trade marks is not static, so that continuing
progress in the means of competition, consumerism and communication
(such as digital networked communications) continues to push at the
boundaries of trade mark law while new means of unfair competition
emerge. The unauthorised use of trade marks in domain names is a practice
now challenging trade mark law (see 17.7). Businesses are also increasingly
adopting multiple layers of protection, combining trade marks with
copyright in particular: Handi-Craft Co v B Free World Ltd (2007), which
related to the copying of substantial parts of the claimant’s logo as well as
allegations of patent and trade mark infringement and passing off. Such
broad protection is controversial, as the effects can hinder competition, and
it is argued that the boundaries of copyright are distorted, and trade mark
rules undermined, where a copyright action succeeds when a trade mark
claim fails.2
1 Collectively termed ‘products’ here.
2 Bently, L, ‘Copyright as an Industrial Property Right’, lecture given to the AIPPI (International
Association for the Protection of Intellectual Property) in 2008. Slides available on AIPPI website:
www.aippi.org. Professor Bently cited the examples of Griggs v Evans (2004), Trebor Bassett v FA
(1997) and FA Premier League v Panini (2004).
15.1 Trade Marks
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