Absolute Unregistrability 2

Question 1

What are the functions of a trademark?

Answer 1

1. Indicate commercial origin
2. Incentive to maintain good quality goods or services
3. Use as an advertising tool and implementing commercial strategies
4. Investment incentive
5. Communication about commercial source or brand-image

Question 2

What does the TMA 1994 say about protectable subject-matter?

Answer 2

1. In this Act, “trade mark” means any sign which is capable
   a) of being represented in the register in a manner which enables the registrar and other competent authorities and the public to determine the clear and precise subject-matter of the protection afforded to the proprietor, and
   b) of distinguishing goods or services of one undertaking from those of other undertakings.

A trade mark may, in particular, consist of words (including personal names), designs, letters, numerals, colours, sounds, or the shape of the goods or packaging

Question 3

What does Article 3 of Directive 2015/2436 say about protectable subject-matter?

Answer 3

A trade mark may consist of any signs, in particular words, including personal names, or designs, letters, numerals, colours, the shape of goods or of the packaging of goods, or sounds, provided that such signs are capable of:

a) distinguishing the goods or services of one undertaking from those of other undertakings; and
b) being represented on the register in a manner which enables the competent authorities and the public to determine the clear and precise subject-matter of the protection afforded to its proprietor.

Question 4

What do sections 3(1)(a) and 47 say about protectable subject-matter?

Answer 4

A mark shall not be registered if it is in breach of section 1 of the TMA 1994