Trade Marks Free Essay Example, 2250 words

Second, it must be distinctive that it is capable of distinguishing the goods and services of one trader from other traders’ trademarks. Third, it must be distinctive (Lee, 1999). However, section 5 of the Trade Marks Act 1994 disallows the registration of a trademark that is indistinguishable from an earlier trademark. Moreover the goods or services concerned should be identical to those with regard to which the trademark has been protected. Earlier trademarks are defined under section 6 of the Trade Marks Act 1994 (Anon. , 1994). These include, registered trademarks, international trademarks, Community trademarks whose date of application for registration is prior to that of the trademark sought to be registered, Community trademarks that can validly claim seniority from a previously registered trademark or international trademark, and trademarks that are entitled under the Paris Convention to protection as well known trademarks (Anon. , 1994). The Trademarks Registry has adopted a practical approach to this problem by declaring that graphical representation of a sign transpires, whenever the following conditions are satisfied. First, the mark should be defined with sufficient precision, so that infringement rights can be determined. We will write a custom essay sample on Trade Marks or any topic specifically for you Only $17.96 $11.86/pageorder now Second, the graphical representation should be capable of independently establishing the trademark without the necessity of additional information, such as supporting samples (Lee, 1999). The Registry made it clear that these guidelines are not common for every case. Every application will be considered on the merits of the case. For instance, the Dulux Dog mark was registered despite its simplistic description. In this instance the Trademarks Register permitted the registration of an image of an Old English Sheepdog and the Derbyshire Building Society (Lee, 1999). The Registry allows representation of shapes that are in the form of line drawings or photographs. A perfect example of this is the Coca-Cola bottle. The old Act refuses to register the shape of a bottle (Lee, 1999). The TMA, due to its pragmatic approach, had permitted the Coca Cola Company to register the shape of its bottle as a trademark. However, in our problem, trade mark for a pyramidal shape was already possessed by the renowned Toblerone chocolates. Hence, registration of the pyramidal shape for chocolate mints causes an infringement of the provisions of the Trade Marks Law. (ii) A name, "Oxford", for bicycles, which is a well – established unregistered mark recognised as a leader in its field of quality bicycles for the last twenty years.