This chapter considers the principle of good faith. English law has traditionally been cautious about wholeheartedly adopting an overriding principle of good faith preferring instead to avoid unfair outcomes through particular doctrines (for example, misrepresentation, duress, and undue influence). However, the law in this area is developing. It appears that agreements to negotiate in good faith are not enforceable where no contract is yet in place, but, where the parties have already made an agreement, a term (whether express or implied) that the contract should be performed in good faith is enforceable. Similarly, there may be (implied) terms that discretionary powers be exercised in a manner that is not irrational or unreasonable.
Chapter
20. Good faith
Chapter
37. Absolute Grounds for Refusal
L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter examines the ‘absolute’ grounds for refusing to register a trade mark as set out in section 3 of the Trade Marks Act 1994. It first looks at the reasons for denying an application for trade mark registration before analysing the absolute grounds for refusal, which can be grouped into three general categories: whether the sign falls within the statutory definition of a trade mark found in sections 1(1) and 3(1)(a) and (2) of the Trade Marks Act 1994; whether trade marks are non-distinctive, descriptive, and generic; and whether trade marks are contrary to public policy or morality, likely to deceive the public, or prohibited by law, or if the application was made in bad faith. Provisions for specially protected emblems are also considered.
Chapter
14. The grounds for judicial review
This chapter considers the grounds on which public decisions may be challenged before the courts. It begins with an overview of two cases—Associated Provincial Picture Houses Ltd v Wednesbury Corpn (1948) and Council of Civil Service Unions v Minister for the Civil Service (1985). The importance of these two cases is their distillation of the general principles. The discussion then covers the different grounds for judicial review: illegality, relevant/irrelevant considerations, fiduciary duty, fettering of a discretion, improper purpose, bad faith, irrationality, proportionality, procedural impropriety, natural justice, legitimate expectations, the right to a fair hearing, reasons, and the rule against bias. It is noted that principles often overlap, so that a challenge to a public law decision may be based on different principles.
Chapter
14. Trade marks 2: definition of a registrable trade mark, absolute grounds for refusal and invalidation, and revocation
This chapter examines the definition of a registrable trade mark, absolute grounds for refusal or invalidation of a registered trade mark, the extent to which objections can be overcome through proof of distinctiveness acquired through use and the rules on revocation of a registered trade mark, both at national level for UK trade mark registrations and at EU level for the EU trade mark. It examines these issues looking at many different kinds of trade mark, from traditional work marks and logos to so-called ‘non-conventional’ trade marks such as three-dimensional product shapes, sounds, smells, colours, and position marks.
