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Trademarks > Bridget Lecture > Flashcards

Bridget Lecture Flashcards

1
Q

What do Trademarks protect?

A

Trademarks protect a sign from being used by other traders and show the commercial origin of a product.

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2
Q

What are the four routes to get a registered trademark in the UK?

A

National UK Application
European Application
International Application designating the UK
International Application designating the EU

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3
Q

What are the costs of filing a UK Trademark?

A

efiling: £170
Paper: £200
Right Start: £100 upfront, £100 after Examination report issued.

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4
Q

What are the costs of filing a European Trademark?

A

efiling: €850
Paper: €1000

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5
Q

Which countries can be designated in an International Application?

A

Signatories to the Madrid Protocol

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6
Q

How is an international application linked to a national application?

A

An International Application must be based on a National mark. The International mark is dependent on the national application for 5 years. If the central mark is opposed, it affects all territories designated by the International application.

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7
Q

What are the pros and cons of a UK National Application?

A 
Pros: 
	High presumption of validity (stringent Examination)
	Cost
	Speed
	Language
	Can phone and speak to a real person
Cons:
	Only covers the UK
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8
Q

What are the pros and cons of an EU Application?

A 
Pros:
	28 countries in one application
	Cost
	No earlier rights search
Cons:
	All in one system
	Languages
	High opposition rate
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9
Q

What are the pros and cons of Madrid protocol applications?

A 
Pros:	
	Pick n mix countries
	File in home office
	Centrally administered
	Individual refusals
	No need for local attorney if based in the UK
Cons:
	Bureaucratic
	Fees in Swiss francs
	If problems are encountered, you will need a local attorney
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10
Q

What are the filing requirements for under Section 32(2) of the UK Trademarks Act?

A

A request for registration
Applicant name and address
Statement of goods and services - class number not required but is encouraged
A representation of the mark

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11
Q

How was Section 1(1) of the Trademarks Act 1994 amended in January 2019?

A

Previously Section 1(1) required that a graphical representation of a trademark was required. This was updated by the EU trade mark directive 2015 which removes this requirement. No a trademark may,, in particular consist of words (including names), patterns, letters, numerals, shapes of goods or packaging, sounds, motion marks, multimedia and holograms.

It is now possible to submit marks in a range of alternative electronic formats for example MP3, MP4.

It is worth noting that any applications under the Madrid protocol have to be graphically represented.

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12
Q

How can sound marks be represented?

A

Graphically for example by musical notation,
Sonograms
Electronic formats for example MP3

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13
Q

How can colour marks be represented?

A

Reproduction of the colour and an internationally recognised colour code system for example Pantone

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14
Q

How can motion marks and holograms be represented?

A

Sequential drawings or electronic formats

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15
Q

What happens if any of the filing requirements aren’t fulfilled?

A

A period of at least 14 days will be allowed to remedy deficiencies and the filing date is the date on which the missing information is provided

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16
Q

What does section 41(2) refer to?

A

Series marks: Applicant can file up to 6 marks in a single application provided that they resemble each other in their material particulars, differ only in matters of a non-distinctive character and those differences do not substantially affect the identity of the trademark. (e.g. Aspalls)

17
Q

What happens when an application is correct filed?

A

The marks is formally examined and a search of earlier marks is conducted, the applicant is informed of the results in 1 month. If the marks is accepted, it is published in the trademarks journal and if not then discussions or hearings commence(not related to any earlier marks)

18
Q

What does section 3(1)(b) refer to?

A 
Section 3(1): the following shall not be registered:
	(b) Trade Marks which are devoid of distinctive character.

A trade mark needs to guarantee the origin of the goods or services.

A trade mark is assessed by the average consumer.

19
Q

What features can a distinctive slogan have?

A

It can convey a number of meanings
It can constitute a play on words
it can be perceived as imaginative, surprising and unexpected
It an possess a certain originality or resonance, requiring at least some interpretation by the relevant public or setting up a cognitive process in the minds of the public.

20
Q

What are the features of the Average Consumer?

A 
Reasonably well-informed
Reasonably observant
Circumspect 
(the level of attention depends on the goods or services involved)
Imperfect recollection
21
Q

What does section 3(1)(c) refer to?

A 
Section 3(1): the following shall not be registered:
	(c) Trade marks which consist exclusively of signs or indications which may serve in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin or the time of production of the goods or of rendering the service, or other characteristics of the goods or service.
22
Q

What does section 3(1)(d) refer to?

A 
Section 3(1): the following shall not be registered:
	(d) trade marks which consist exclusively of signs or indications which have become customary in the current language or in bona fide and established practices of the case.

The terms be in use and justify the objection. The mark must consist exclusively of the generic term.

23
Q

What does Section 3(2) refer to?

A

Shape marks:
Section 3(2) A sign shall not be registered as a trade mark if it consist exclusively of:
(a) the shape which results from the nature of the goods themselves
(b) the shape of the goods which is necessary to obtain a technical result
(c) the shape which gives substantial value to the goods.

24
Q

What is the purpose of Section 3(2)?

A

To prevent individual traders from monopolising shapes which are:
Inevitable S3(2)(a)
Exclusively technical S3(2)(b)
Aesthetic S3(2)(c)

25
Q

What does section 3(3)(a) refer to?

A 
Section 3(3) A sign shall not be registered as a trade mark if it is:
	(a) contrary to public policy or to accepted principles of morality 
For example:
	Names of terrorist organisations
	Blasphemous
	Discriminatory
	Offensive
26
Q

What does Section 3(3)(b) refer to?

A 
Section 3(3) A sign shall not be registered as a trade mark if it is:
	(b) of such a nature as to deceive the public (for instance as to the nature, quality, or geographical origin of the goods or service
27
Q

What does Section 3(4) refer to?

A

Section 3(4) A sign shall not be registered as a trade mark if or to the extent that its use is prohibited in the United Kingdom by any enactment or rule of law or by any provision of European Union Law

Section 4 refers to 5 categories of signs:
Royal heraldry
UK flags
National emblems of signatories to the Paris convention
Emblems of some international organisations e.g. red cross or olympics
Coats of arms

28
Q

Which EU regulations protect geographical indications?

A

Regulation 510/2006 - agricultural products and foodstuffs
Regulation 1493/99 - protects wine
Regulation 1576/89 sprit drinks

29
Q

What does Section 3(5) refer to?

A

Section 3(5) A trade mark shall not be registered in the cases specified, or referred to in Section 3(4) (specially protected emblems)

30
Q

What does Section 3(6) refer to?

A

Section 3(6) A trade mark shall not be registered if or to the extent that the application is made in good faith

For example when the name of a famous individual (alive or deceased) is applied for.

31
Q

What is the purpose of Notifications?

A

To inform the Applicant about the earlier use of marks where there might be a high risk of successful opposition to enable the Applicant to make an informed decision about continuing with the application.

It also gives the owners of the earlier marks the opportunity to oppose if they so wish

32
Q

What does section 5 refer to?

A

Section 5(1) A mark identical to an earlier mark, for identical goods and services shall not be registered.

Section 5(2)(a) and (b) states that when both identical and similar marks, and identical or similar goods or services come into play: it boils down to whether there is a likelihood of confusion, which includes the likelihood of association.

The Average Consumer is used to determine whether confusion is likely.

33
Q

How and why do you prove distinctiveness acquired through use?

A

Objections related to descriptiveness, non-distinctiveness, and customary use in trade (Section 3(3)(b-d) can be overcome by evidence. This can be demonstrated by, for example:
Use as a trade mark
Period of use, turnover, market share, advertising spend, trade evidence
Examples of trade mark being used in respect to goods or services
Geographical spread

34
Q

What are the requirements for Third Party Observations?

A

Must be lodged after publication but before registration
Must bring to registrar’s attention matters of which he was not already aware
Can only be used in relation to absolute grounds.

Trademarks (6 decks)

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