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LAW ON TRADEMARKS

What is a trade mark?

A trade mark is a mark, brand or sign used by traders to differentiate their goods from those of other traders. Trademarks can be registered or unregistered.

Under the Trade Marks Act 1994, any sign which can be represented graphically and which is capable of distinguishing the goods or services of one business from those of another is in principle registrable as a trademark (subject to the absolute and relative grounds for refusal (see below)). Examples of trademarks are: labels, logos, names (including domain names), packaging, smells, sounds, business style and business presentation. Therefore, a trade mark can extend beyond the name of a product or its logo to the colour and shape of the goods. For example, Marmite jar, Coca Cola bottle and colour combinations for drug capsules.

The name of a person with a possible endorsement right can also be a trademark. However, the name and the image of an individual has to be distinctly linked with the origin of the goods or services in question. For example, Tiger Woods with golf equipment. Therefore, the application to register the image of Diana as a trade mark in connection with various goods such as tea towels failed, likewise so did the application to register Elvis Presley as a trade mark on beauty products.

In relation to geographical names, it has recently been held that, in general, they cannot be registered as trademarks. However, where a geographical name has come through use to identify the product as being made by a particular undertaking, then the geographical name gains a new significance and can be registered e.g. Waterford crystal.

Internet domain names (for example: www.thelegalstop.co.uk ) can be registered as a trademark provided they are distinctive. Further, it is possible for infringement to occur where the domain address used utilises an already established trademark.

Exploitation of trade marks

There are various ways in which a trademark can be exploited:

  • A business may sell its trade mark, for example if it wishes to withdraw from a specific product market.

  • A business may wish to spread the financial return through licensing. Competition law may apply to trademark licensing to control the extent to which a licence holder can be protected from competition from the licensor or its other licence holders.

UK Registration of trademarks

Application for registration is made to The Intellectual Property Office (IPO). The application must be accompanied by payment of a fee. Renewal is necessary every 10 years, when a further fee will be required. Alternatively, an application may be made at the European Trade Marks Office.

An application is filed for goods or services in one or more of the relevant classes of the International Classification. Each class represents a certain type of goods or services. There are 45 different classes for goods and services. Often, it would be advantageous to file in a number of different classes in order to cover the variety of goods or services in which the business proposes to deal. The classes tend to be rather broad and it will normally be necessary to limit the application to specified goods within that class.

Steps to be taken for registration

  1. File application. You should receive a receipt within 1 week.
  2. Examination and search by the Trade Mark Registry. You should receive a report within 4 weeks, and this may contain the Intellectual Property Office’s objections. If this is the case, you may wish to respond.
  3. Advertisement of the application in the Trade Mark Journal.
  4. Opposition to the trademark would need to be made within 2 months, with the possibility of a 1 month extension.Registration if no opposition is made or if opposition proceedings are decided in favour of the applicant.
  5. Date of registration is back-dated for priority purposes to the date of first filing.If the examiner rejects the application to register the trademark, there is a right of appeal to the High Court.

Grounds for refusal of registration

There are 2 types of grounds on which an application to register a trademark can be refused. These are absolute grounds and relative grounds.

Absolute grounds

Absolute grounds apply where the sign is, for example, purely descriptive, not distinctive and should otherwise remain available in the public domain. The trademark would be refused registration on the following grounds:

  1. The trade mark lacks distinctive character. That is, if the mark applied for merely describes the goods and services applied for. For example ‘Froot Loops’ was refused on the basis that the name described the product.
  2. The trade mark consists exclusively of signs or indications which are used to describe a particular feature of the goods. The following categories would therefore be considered descriptive:
  • Kind. For example, personal (for computers).
  • Quality. For example, best.
  • Intended purpose.
  • Value. For example, worth their weight in gold.
  • Geographical origin.
  • Time of production or of rendering of services. For example, 24 hour service, eight till late.
  • Other characteristics of the relevant goods or services.
  • Phonetics: misspellings of words that would otherwise be refused will require evidence that the trademark is distinctive.

3. The trademark consists of signs or indications which are customary in the current language or the established practices of the trade.

A trade mark should not be refused registration in relation to any of the above grounds, if, before the date of application to register, it has in fact acquired a distinctive character as a result of the use made of it by the applicant.

4. The trademark consists exclusively of the shape if the shape: results from the nature of the goods themselves; or is necessary to obtain a technical result; or gives substantial value to the goods.

Goods or packaging created in a specific shape may be registered.

5. The trademark is contrary to public policy or accepted principles and morality.

6. The trademark is likely to mislead or deceive the public (for instance, as to the nature, quality or geographical origin of the goods or service). For example, an application to register ‘Swiss Miss’, the name of a chocolate, failed on the ground that it was not made in Switzerland and was not in anyway connected with Switzerland.

7. The trade mark is prohibited under UK or EC law.

8. The trade mark is a specially protected emblem e.g. the Olympic symbol.

9. The application is made in bad faith.

Relative grounds

Relative grounds for refusal are concerned with protecting the prior conflicting rights and interests of other trademark owners and the interest of the public in not having similar marks used in relation to the same or similar goods or services. The earlier mark will be protected whether they are registered or not and different rules apply to each situation.

Where the earlier trade mark is registered

An application will be refused where there already exists an identical or similar trademark that relates to identical or similar goods and services AND where members of the public are likely to be confused. An application may also be refused on the grounds that, although the goods or services are not similar, the trademark has an established reputation and an applicant for a similar or identical trademark would be taking unfair advantage of, or causing detriment to, that reputation.

Where the earlier trade mark is not registered

Even where the earlier trademark is not registered, registration may be refused if it benefits from the reputation of that existing trademark.

Infringement of a trademark

Infringement occurs when the trademark is ‘used’ by a person or business other than the owner without their agreement or where the use is based on the above absolute and relative grounds. Therefore, an applicant who tries to register such a trade mark will not only be refused registration but through its use may be sued for infringement. ‘Use’ of a trade mark includes: putting it on goods or packaging; offering, marketing or stocking goods or services under the mark; importing or exporting under the mark; putting it on business papers or advertising material.

Infringement can also be non-visual such as ‘smell’ or ‘sound’ trademarks.

Suppliers of the infringing material, such as printers, may be joined in proceedings. For such an action to succeed, the supplier must have known or have reason to believe that use of the mark was not authorised by the owner.

International Implications

There are 3 ways of registering trademarks. All applications can be made through the UK Intellectual Property Office (IPO).

  1. Application in the UK for a UK trade mark registration will protect the trademark in the UK ONLY. Conversely, trademarks registered outside the UK will not be protected by that registration in the UK, in the absence of any international agreements to the contrary.Application for a Community trade mark (CTM). This is a unitary right applying in the EU.
  2. Application for a CMT may be made either at the IPO or directly to the Office for the Harmonisation of the Internal Market based in Spain. There is an additional handling charge for CTM applications dealt with by the IPO. Registration will extend to all EU countries and is cheaper than applying for national rights in every country. It is important to note that CTM regulations do not replace national trademark laws, but offer an alternative system of registration. Registration is renewable every 10 years. The main disadvantage of a CTM is that if it is successfully opposed in one of the EU countries, the application will fail in all. The only way around this will then be to convert it to individual trademark applications in each country, which means additional fees to be paid, on top of the CTM registration fees already paid.
  3. Application for an international trademark registration, under the Madrid Agreement. It introduces a single international application, which permits the registration of a mark in more than one country, as if the application was made to each individual country.

An application can be made by an owner of a trade mark (application or registration) in one of the member countries of the Madrid Protocol, who is also one of the following:

  • a national of a member country of the Protocol;
  • a resident of a member country of the Protocol; or
  • a person or organisation with business premises (legally, ‘a real and effective industrial or commercial establishment’) in one of the member countries of the Protocol.

Because the UK is a member of only the Madrid Protocol (and not the Madrid Agreement), you can protect your mark only in countries which are also members of the Protocol.

The application is made to the IPO, who then present the application to the International Bureau of the World Intellectual Property Office (WIPO) in Geneva, which in turn notifies each designated Contracting Party. Each notified country has between 12 to 18 months to oppose registration, after which registration will automatically take effect, and the mark will be protected as if the mark had been registered as a national trade mark (Madrid Protocol, Art.4(1)(a)). The initial duration is for 10 years, renewable for 10 years thereafter.

What should I do if I believe that a domain name which I have registered as a trademark has been infringed?

Nominet UK is the Registry for .uk Internet domain names, and provides a dispute resolution service for .uk domain names.

The majority of disputes relating to domain names are brought under Uniform Dispute Resolution Policy (UDRP). The UDRP is used widely to deal with what is known as cybersquatting (deliberate, bad faith, abusive registration of domain names in violation of others’ rights – particularly trademarks). The complaints are usually brought by the holder of a registered trademark which is identical or very similar to the domain name in question. Generally the complainant must prove the following to succeed in a complaint:

  • that the domain name is identical or confusingly similar to a trademark in which the complainant has rights;t
  • he respondent holder has no rights or legitimate interests in respect of the domain name; and
  • the domain name has been registered and is being used in bad faith.

Under the policy, complaints are examined by independent panels and if the panel concludes that the complaint satisfies the requirements specified in the policy, it directs that the domain name should be cancelled or transferred to the complainant. If not, the complaint is rejected.

Remedies

There are various remedies available to the owner of a trademark where a trademark right has been infringed. Sometimes, commercial advantage can be gained by the owner on selling or licensing the trademark to the infringer. Where such agreement between the parties is not possible, the following remedies are typically available:

  • Injunction (a restraining order to immediately stop the infringing act).
  • Damages (a monetary claim for financial compensation).
  • Account of profits (this allows the injured party to claim the profits made by the party who is in breach).
  • Delivery up and destruction (the right to both seize goods and have handed over the infringing material or goods).
  • A declaration that the trade mark is valid and has been infringed.
  • Criminal penalties (enforcement being carried out by the Office of Fair Trading with the maximum penalties being 10 years imprisonment and/or a fine).

The usual way to begin would be for solicitors to draft a letter on behalf of the client demanding an undertaking that infringement cease immediately, threatening legal action, usually by way of injunction, and claiming damages or account of profits. However, such a letter should be carefully drafted as the law does provide that where the threat of litigation is groundless, the aggrieved person may be able to bring a civil action for damages on the basis of the groundless threat. A threat would be groundless where the acts concerned would not in fact be an infringement of a valid right.

 

New services including fixed fee court representation

At The Legal Stop our aim is to make the law and the provision of legal services both more affordable and more accessible to both individuals and businesses. To many people the whole legal field is opaque and those on the outside often find it intimidating and bewildering. We intend to change that and ensure that you can secure straightforward advice access to legal documents that will allow you to act with confidence.

The Legal Stop is proud to introduce several new services that will offer individuals and businesses affordable legal services. These are:

  • Fixed Fee Legal Advice
  • Fixed Fee Bespoke Document Drafting
  • Fixed Fee Court Representation

We have partnered with a select number of law firms and barristers’ chambers to provide access to legal services on a transparent and affordable fixed fee basis. Most legal firms charge on an hourly basis and this means that costs can quickly add up, making an already stressful situation worse. We have seen the need for providing quality, affordable advice and can ensure that qualified solicitors and barristers are on hand to provide the professional expertise that you need. This includes fixed fee court representation so that for a one-off fixed fee you can have a barrister representing you in the County Court to deal with matters such as possession hearings, charging orders or enforcement hearings. We can also help with case management conferences, applications to set aside default judgements and arbitration hearings. This means you will have peace of mind knowing that costs are transparent right from the start and you can proceed without the worry of how you will deal with a situation of rapidly escalating fees.

In addition to our newly launched offering The Legal Stop will continue to provide the same great professional service in the areas of:

  • Legal and Business Document Templates
  • Request a Template Service
  • Free Legal Documents and Information

We have a portfolio of over 300 legal document templates online and available for download. All of our document templates are professionally drafted, legally binding and subject to the jurisdiction of the courts of England and Wales. They are also regularly updated to comply with any changes to the law. Our templates are written in plain English and easily understandable, so you can avoid the jargon that is commonplace elsewhere. Our documents are also bespoke and tailored to your individual circumstances.

Because our templates are fully compliant with English law they avoid a lot of the uncertainty about creating the sort of contracts and agreements that everyday life requires us to draw up to protect ourselves and our businesses. We explain subjects in a straightforward way and ensure that you have the confidence to deal with other parties in a professional and legally compliant way.

At The Legal Stop we offer great value-for-money – all of our services are carried out on a fixed fee basis with no hidden extras. We also offer a 100% money-back guarantee so you can buy with confidence!

Twitter abuse: Man arrested in Bristol

Police in Bristol arrested a 32-year-ols man with the charge of making threats on Twitter.

They think he is responsible for the two offences against women reported on 25 and 29 July.

The reporters of BBC found out that the name of the arrested man is being related to the threats made against Labour MP Stella Creasy and feminist campaigner Caroline Criado-Perez.

This is not the first arrest of the kind. Only for the last two weeks after the allegations a third person is being arrested.

The detained one is held under the Protection from Harassment Act 1997 and the Metropolitan Police announced he is about to be taken to a Bristol police station.by the way, don`t forget to download our Anti Bullying and Harassment Policy

Many shared their view that Twitter had to do more in order to prevent such anonymous users from sending messages to well-known women. The threats included bomb and rape attacks.

Among the targeted victims were female journalists, columnists and the historian Mary Beard.

Users boycotted the site with the aim to protest against the practice of insulting or intimidating others.

The attention was turned to Twitter, after the threats against campaigner Ms Criado-Perez because of her success for a woman’s face to be pictured once more on UK banknotes.

After Ms Criado-Perez reported the abuse, the 21-year-old-man was arrested in Manchester on 28 July.

Extra staff was appointed in Twitter in order to deal with the high levels of abuse.

The affected women got an apology from Twitter according to which the incident was

“unacceptable”.

 

Minimum alcohol pricing: Five countries oppose Scottish drink plan

The plans of Scotland for minimum alcohol pricing were opposed by five European wine-producing nations.

France, Spain, Italy, Portugal and Bulgaria shared their opinion that such changes may turn out to be devastating on spirits industry. According to them such reforms would breach European free trade law.By the way, do you have our Alcohol and Drug policy.

However, Scottish government called the minimum pricing- “perfectly legal”.

Only Irish , out of 12 countries that have expressed their views, claims they have nothing against the minimum pricing.

The Scotch Whisky Association (SWA), spiritsEUROPE and the Comité Européen des Entreprises Vins have already challenged in court the legality of the Alcohol (Minimum Pricing) (Scotland) Act.

The beginning was not hopeful- on 3 May the Court of Session in Edinburgh ruled that the minimum pricing law was legal. But SWA does not stop with its appeals against that decision.

An SWA spokeswoman said: “The Scottish Court of Session failed to give any consideration to the effect of minimum unit pricing on producers in other European Union member states.”

According to a senior Scottish government source the minimum price would not be applied within the next 12 months.

If the proposal is accepted a bottle of wine in Scotland with an alcoholic strength of 12.5% would cost at least £4.69.

Ministers stated that alcohol abuse problem will be solved to some extent with this law on the minimum price of alcohol.

Scottish Health Secretary Alex Neil had many difficulties in persuading most of the EU member states that this law needed to be accepted.

Portuguese claimed this minimum pricing would be disastrous for many of the companies in the sector.

Lisbon considered such a law a discriminatory one because British manufacturers had higher production costs and higher prices than continental European wine-producers.

France pointed out that “the average price of a bottle of wine produced in the United Kingdom is higher than the average price of imported wine”.

Bulgaria said wine and spirit producers will have to face many obstacles.

Spain and Italy shared the views of the other countries opposing the law.

 

Clegg Promises Review Of Zero-Hour Contracts

Deputy Prime Minister Nick Clegg announced that the effects of zero-hour contracts on the workforce will be checked by the business department. After these zero-hour contracts staff has to be ready to work as required despite of the fact that they have no guaranteed hours.Download your zero-hours employment contract template.

Clegg shared his view about the employers, from Sports Direct to Buckingham Palace, who had proposed such contracts to their staff. He said he assumed the responsibility that the business department would review the use of these contracts.

Discussions on the matter started not long ago because it was revealed that many employees’ lives were ruined because of the ever-shifting working hours and non-guaranteed wages.

At a conference at London Clegg mentioned some of the problems that could appear as a result of this practice.

“Families have to plan to pay bills – everyone has to plan for what their income is and what they are going to pay out,” he said. “That can cause very intense insecurity and anxiety indeed.

“The business department is looking at this over the summer to see if we need to make any adjustments. I am not going to second guess that process. I am very interested in seeing what evidence they come up with.”

He added there were no official statistics pointing out the number of people working zero-hour contracts but promised they would do everything possible in order to cope with the problem.

Due to data of the Office for National Statistics the number of staff signed up to zero-hour contracts is around 200,000, but soon it was revealed that all 20,000 of Sports Direct’s part-time staff worked with the same contracts.

 

Government Taken To Task Over Compensation Culture Myth

A health and safety journal has recently announced that the claims of the government for”compensation culture” were nonsensical. Buy Health and Safety documents.

A health and safety publication Hazards claims that the number of people getting payouts for injury or disease resulting from work, has fallen with 60% over the past decade.

In the time between 2011-2012 only 87,655 people had received compensations and back in 2000-2001 their number was 219,183.

Due to different statistics most of the people suffering from terminal conditions contracted in the workplace have no chance of getting any compensation.

An appropriate example for the mentioned is the fact that for the last year 4,000 workers have died from occupational emphysema and chronic bronchitis, and only 59 workers managed to get compensation for the harsh working conditions.

Last year Prime Minister David Cameron commented: “It is simply much too easy for no-win-no-fee lawyers to encourage trivial claims against businesses, which end up settling out of court because it’s too expensive to fight the case. It’s a huge part of our compensation culture and it must change.”

He promised public to change the health and safety law in case so that businesses will not be considered faulty each time when something went wrong.

According to Rory O’Neill, editor of Hazards most of the workers were dying not only in pain but also in poverty.

However, a spokesman for the government announced it was trying to make new health and safety rules and give its best in order to protect their workers.

 

NHS Considering Measures To Increase Number Of Organs Donated

NHS Blood and Transport plans changes considering organ donors. Data show that only 57% of families allow the donation of the organs of their relatives.

Usually this happens because the family does not know what exactly would their loved ones prefer to happen to their organs.

The goal of NHSBT is to increase the mentioned percent up to 80%.

It claims organ donation will soon go through a revolution as the number of donors will increase unprecedented. May be people should be encouraged to formally acknoledge their last will, concerning what will happen to their organs. Who know, we might need do draft legal documents for it.

The number of people who died last year in the UK and their organs were donated is 1,212 and those on the waiting list for transplant are 7,300. This means many people have no chance at all.

The Organ Donor Register has 19,5 million people but the organs of most of them will die in such a way which will make their organs unusable.

According to NHSBT the number of those waiting for transplantations will most probably increase for the future.

Singapore and Israel use a system after which registered organ donors are given priority on the waiting list. UK also considers such a strategy as a way to increase the number of organs being donated.

Last week Welsh voted a system after which deceased people will automatically donate their organs unless while alive they have chosen not to.

“When a family says no to donation it means someone’s hopes of a life-saving transplant are dashed,” said Dr Paul Murphy, from NHSBT. “They need to understand the consequences of refusal.”

In the view of Sally Johnson, also from NHSBT people did not have to burry their organs in case they could save somebody else’s life.

 

 

Ofgem to Receive New Powers After Fears of Energy Market Rigging

With the aim to stop the manipulation of the energy market the energy regulator Ofgem will receive new powers which will lead to lots of changes.

After many people expressed their concerns that providers and financial institutions may be rigging the energy prices, now Ofgem will be able to inspect company premises and obtain potentially incriminating data, including a wide variety of legal documents.

In case it finds something wrong it would be able to fine the perpetrators.

The energy and climate change secretary Ed Davey will soon announce the new powers to the Parliament. These come as a consequence of the Libor scandal where banks were misreported to lend to one another trying to rig the system.

This led to fears about similar manipulation in the energy markets where the prices of oil, gas and energy may also be rigged so that the speculators may earn money on the shoulders of the average consumer.

Many say that reports may show what the current situation is, but in fact they may also be counterfeited and in he end consumers are deceived again.

One of the price-reporting agencies received a report with false data so that Ofgem and the Financial Services Authority conducted an investigation.

According to the European Commission the Remit legislation has to be adopted till the end of this month.

In order to get all the possible details of any attempted market manipulation EC authorities would ask for reports from companies of their buying and selling activities relating to oil, gas and power.

 

Legal aid plans: Defendants ‘will lose right to choose’

Figures show that taxpayers give about £2bn every year on legal aid as more than half of it is spend on criminal defence. Recently ministers announced that due to their latest plans the annual criminal legal aid budget in England and Wales would be cut with £220m.

The defendants will no longer have the right to choose a solicitor and this would reflect to those people who needed lawyers with specialist expertise. It is not the same with people, who need document drafting.

Ministers stated that the right to a fair trial would not be affected and called for bigger organisations to stop providing legal aid.

When the changes do happen providers of legal aid would have to bid for contracts; defendants whose income is larger than £37,500 would not have automatic access to legal aid; prisoners will have difficulties when trying to complain against the prison system.

Sir Anthony, who retired as a Court of Appeal judge last year, said the plans had serious lapses mentioning that for the future a defendant would be “allocated a firm of solicitors, a lawyer or a corporate provider like Eddie Stobart, or whoever it may be”, not being able to choose such a lawyer who would be well-aware of their cases and needs.

The Ministry of Justice received a response of 150 pages from the Bar Council.

Maura McGowan QC, chairperson of the Bar Council, expressed her opinion claiming that nowadays the whole world admired the current justice system and for the future money would mean everything.

“PCT may look as though it achieves short-term savings, but it is a blunt instrument that will leave deep scars on our justice system for far longer.”

The Association of Prison Lawyers added that many important matters such as the separation of mothers and babies for example, would not receive any funding.

Soon the Legal Aid, Sentencing and Punishment of Offenders Act removed legal aid from many areas of civil law were removed.