Issue 4, 15th January 1996: Trademark
By Sonya Clarke.
[Computing, Law, Science and Technology, SciFi, Sport, The Unexplained, UP]
Virgin Atlantic was recently fined for misleading advertising on the Internet, due to an out-of-date price indication, which suggests the importance of regular updating of Web pages.
The European Parliament has rejected an amendment to the draft Distance Selling Directive that would have introduced prior consent for cold calling throughout the European Community. The draft does, however, include a required cooling-off period of seven days for consumer contracts made at a distance.
The practical impact of the CTM is that trade mark protection can be obtained in all 15 EU member states by way of a single application in any of the official languages of the European Community. The CTM is a substantial step towards achieving harmonisation of the European market in the field of industrial property. It should, in theory, be covered by uniform rules throughout the Community (subject, ultimately, to interpretation by national courts). Applications for a CTM can be made to the office in Alicante or any of the trade mark offices of the 12 member states that have their own trade mark registration system. National trade marks will continue to exist alongside the CTM. As a result, the two systems should be compatible. Before granting a CTM, the European office will have to deal with any conflicts that arise between the CTM applicant and earlier national applications by other parties for similar marks.
Member states have adopted measures to bring their trade mark laws in line with Community trade mark law. The 1994 Trade Mark Act in the UK is based on the 1988 Directive. The Act unifies the old dual system of registration of marks for goods and services and introduces a wider definition of what is registerable as a trade mark. The new definition includes signs that are capable of being represented graphically. If distinctive, packaging shapes may, as a result, qualify for trade mark protection. The Act also widens the test for infringement of a trade mark. It is possible for a trade mark to be infringed if confusion arises from its use on similar goods or services. Previously, infringement would only arise if the mark was used on goods or services of the same type. Trade mark registrants could now find that they are challenged by businesses using the same mark in unrelated areas. As the Act gives priority to the user who files his application first, there is a strong incentive to businesses to register distinctive property early on. The introduction of the CTM will widen that incentive to potential registrants to obtain protection in all 15 member states.
Interpretation of the Community Trademark Regulation in infringement disputes will be the
domain of whichever of its national courts each member state designates. Whether this will lead
to grey areas and differences of interpretation along national lines remains to be seen.