Introduction
A trademark helps consumers identify a product or service of a business or an organization. The trademark is like an identity of an organization. Trademarks vary from a name, letter, shape, resonance, sign to a logo. Some businesses will combine some of the elements to ensure that their trademark is unique. A trademark also protects a business or organization against imitation of their products by competing enterprises. There are some incidences where another party duplicates a trademark. However, the owner may not be able to defend the trademark if it is nor registered or if it does qualify for prior rights.
The United Kingdom has rules that protect trademark owners from infringement. The Trademark Act of 1994 is one of the acts that protect the ownership rights of a trademark. Section10.1 of the act states that a trademark violation occurs when a business sells or buys goods using that have the same sign as the one registered. Violation occurs when the business or person sells goods that are similar to those sold by the owner of the trademark. Section 10.2 states that infringement also occurs when an organization uses a trade mark that is indistinguishable from a registered one, (Kase, 1974.pp 312). The same applies for goods and services. A business might produce the same goods as those of a business that owns the trademark. The implication of these actions is confusion in the market concerning the authenticity of the products.
Section 10.3 of the 1994 act also considers the use of a similar sign as an act of infringement. An organization might use a trademark similar to a registered one. There are some cases where an organization uses the same sign, but produces different products. However, if the business uses it well, without ruining the reputation of the trademark, then this is not infringement.
Consequences of registering Pointymint
The application for registration of a trademark for the Pointymints has different effects to the owner of the supposed trademark and the owner of toblerone. The two businesses produce the same product that is chocolate. Although the pointy mint wants to modify their trademark to a pyramid from the triangle, it still committing infringement. This is because the trademark they want to use is similar to the one used by the toblerone. The consequence of the registration of the trademark will be confusion by buyers. However, the Pointymints Company might not be able to get their trademark registered. The Trade Marks act of 1994, section 10.2 does not permit this move. The pointy mint company plan to make chocolates which are the same products that the Toblerone Company produces. In addition to this, they also plan to use a trademark that is similar to that of the same company. The pointy mint company plans to get acceptance from the consumers by using the same trademark and producing the same products, (Dabydeen, 2004 pp 143).
Under section, 47 of the trades mark act of 1994 will not allow the registration of the trademark. This is on the grounds that the trademark is breaking the law in section 10.2 of the 1994 act. The trademark is invalid because it is similar to another one that produces the same product. The registration process will not proceed because the trademark is similar to another one. The only way for it to be registered is if and when the Toblerone Company gives their consent for the trademark to be registered, (Kase, 1974, pp 254).
There are many relevant cases to the shapes and domain names used in the business market. The case of Harrods Company limited and the UK Networking services are such an example. The Harrods was a domain name under the Harrods limited. However, Michael Lawrie used the name in the internet to market his products. This was on the grounds that Michael Lawrie was using a renowned trade mark to advertize his goods without the other person’s consent.
Oxford
The United Kingdom laws recognize the rights of unregistered trademarks that have a notable reputation in its working environment. This applies for a business that has been operating for over ten years. Another condition for it to be recognized is the awareness of the people of the trademark in relation to the products. The United Kingdom laws call this statement the passing off. The individuals operating a well recognized business with a unique trademark has the right to own the trademark even if it is not legally registered.
The Oxford label is a trademark that the bicycle company has been using for the past twenty years. Its customers have been associating the name to the company and its products. The registration of the same trademark by a different company means that they will use the same trademark, but produce different products. The other company will present their products using the label of a different company. The people will not differentiate the two companies. This will lead to unhealthy competition and confusion among buyers.
The law protects the owner of the Oxford Company from a possible damage to his goodwill. This is through a misrepresentation of his products. This means that the other company, which wants to register using the name Oxford might be having other motives; like ruing the reputation of the real Oxford. The passing of is not a constitutional law, but the Trade Mark Act of 1991 recognizes it as a common law. The law does not give the owner of a trademark the absolute monopoly to the trademark; instead it protects the owner from the actions of the defendant, (Oathout, 1981 pp 154).
The law can allow some exceptions if the defendant has any goodwill by using the trademark. The defendant may have new ideas that he or she want to put into effect in the quest to improve their product. However, these cases are minimal as most of the defendants do not aim at promoting the business, but taking advantage of their reputation. The complainant can decide to go to court if the defendant manages to register the trademark. The passing of will protect him if he is able to prove that the defendant is committing distortion of his products.
The Oxford owner can also go to court to demand the revocation of the trademark, if he proves that the defendant has ulterior motives and seeks to ruin his reputation among his clients. The common argument is that the defendant will damage the benevolence of the complainant. However the complainant in this case has an added advantage over the defendant. The defendant been in the business for twenty years, and during these years he managed to build a solid trust among his customers. This means that the use of his trademark by another company will be damaging to this trust, (Wilson, 2004 pp 324).
The case of the pitman training ltd versus the PTC oxford and the Pearson professionals limited was the same as this case. The passing off law was applicable in this case as not one of the three parties had made their trade mark official. The three parties claimed that the ‘pitman.co.uk’ was their domain in the business world.
Desire perfume
The smell of desire perfume is classified in the non-conventional trademark group. This is the group of trade marks that fall into a series of elements. In the trades mark act of 1994 section 47, a trade mark is invalid if people wil not notice the difference between the one that is already registered and has its products in the market. Using the same smell as the one used in making ‘the desire perfume’ is an infringement of the 1994 act. It goes against the section 10.1 act that states that person infringes the law by using the same trademark as a registered. The smell of ‘the desire perfume’ is a vital factor in its acceptance in the market. This is because its users values the smell this product. Therefore, using the same smell means that users will not differentiate the two products. The exception in this case is if the defendant plans to give his product a different name. However, this might not work because people value the smell of perfume and not the name. The defendant is, therefore, breaching the contract in section 10.3.
The registration of the trade mark will not pass through because the smell is a trademark for an existing business. Unless the owner, of the vanilla trademark gives his or her consent to the use of this trademark the law will not allow its registration. This is in the clause, in section 47.5, where it states that the only exception that allows for the registration of an existing trademark is the consent of the owner, (Acevedo, Luna, 2002 pp 345). An example of such infringement was in the Wagamama Limited against the City Centre Restaurants. The Wagamama limited were suing the restaurant called the Rajamama, and they used the passing off law. This was as a result of possible confusion in the minds of the public in accordance to the association between the two names.
Rawntree Ltd
The Rawntree Company limited is known for the unusual metallic purple wrappers it uses to wrap its products. The metallic wrappers have become their trade mark over the years. Customers identify their products with this purple metallic wrapper. Giving another company the rights to use the same color of the metal means hat the company will be sharing their trademark with another company. However, the situation depends on the product that the other company, produces. If the company produces mint, then it will be breaching the Trade Mark Act. The United Kingdom guards the trade marks of its businesses in the 1984 act. In this case, the other company will breach the section 10.2 of the act. The act states that any business that uses an indistinguishable sign from an existing one commits infringement. The defendant in this case is trying to use the trade mark of a well established company to market its goods. According to section 46 of the act, the registration of the trade mark is illegal. The requirement for a trade mark to be legally valid is if the trade mark is original or is not similar in any way to an already existing one, (Dabydeen, 2004 pp 235).
A case taken to court in regards to the similarity of two products was the Reckitt & Colman Products limited against the Bordman Inc. The Reckitt and Colman products claimed that the defendants were using the same wrapping as that of their products. However, the court ruled against them stating that the shape of the products mattered in that case.
Conclusion
Trade marks help consumers identify products and its producers. It gives the businesses and identity in the market. Trade marks are necessary for consumers as it helps them identify products and their quality. Businesses have been able to keep consumers using their products for many years. This is because they produce quality goods, and the goods are under the protection of their trade mark. The law protects the owners of the trade mark from those who want to copy the trade mark. It has acts that regulate the registration of trade marks. This way the trade mark registration offices ensures that all the registered trade marks do not breach the trade marks’ act of 1984. The act protects the registered trademarks. The unregistered trade marks are under the protection of passing off common laws.
List of references
Acevedo, J., & Luna, G., Llahuala, J. 2002. Trademarks: Issue 483 of WIPO publication. London: World Intellectual Property Organization.
Bazerman, S. H,. & Drangel, J. M. 1998. Guide to Registering Trademarks. Steven H. , Jason M. Harvard: Aspen Publishers.
Charmasson, H. J. A., & Buchaca, J. 1998. Patents, Copyrights & Trademarks For Dummies. Paris: John Wiley & Sons.
Dabydeen, R. S. 2004. An Introduction to Intellectual Property. Chicago: iUniverse.
Jester, H. M. 2004. Patents and Trademarks Plain & Simple. New York: Career Press.
Kase, J. F. 1974. Trademarks: a guide to official trademark literature. Michigan: Sijthoff.
Oathout, J. D. 1981. Trademarks: a guide to the selection, administration, and protection of trademarks in modern business practice. California: Scribner Werkman, C. A. 1974. Trademarks: their creation, psychology and perception. Michigan: Longman.
Wilson, L. 2004. The trademark guide: a friendly handbook to protecting and profiting from trademarks Business and Legal Forms. New York: Skyhorse Publishing Inc.