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Cover Contemporary Intellectual Property

15. Trade marks 3: relative ground for refusal and invalidation, infringement, and defences  

This chapter discusses the relative grounds for refusal or invalidation of a registered trade mark, the circumstances in which a trade mark can be infringed, and defences to an action of infringement, both at national level for UK trade mark registrations and at EU level for the EU trade mark. As relative grounds and infringement overlap, these are considered together. After introducing the relative objections and grounds of infringement generally, the chapter considers what constitutes infringing ‘use’ of a sign. The chapter then runs through the three grounds of infringement/relative objections, looking first at double identity, then likelihood of confusion, then infringement of marks with a reputation. The chapter concludes with a discussion of the principal defences.

Chapter

Cover Contemporary Intellectual Property

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.

Chapter

Cover Intellectual Property Law

11. Absolute grounds for refusal of registration  

This chapter examines the absolute grounds for refusal of trade marks from registrability, which are found in s. 3 of the Trade Marks Act 1994 (TMA). The chapter lists objections to registrability based on the mark's own characteristics. To be refused registration, the mark should possess some innate quality which prevents registration. For instance, the mark applied for may be descriptive, generic, or it may lack distinctiveness. Marks that go against public policy or marks that are immoral will also be refused protection. The TMA also contains a number of negative objections in contrast to its predecessor, which required an applicant to show that the mark applied for was positively entitled to registration.

Chapter

Cover Contemporary Intellectual Property

15. Trade marks 3: relative ground for refusal and invalidation, infringement, and defences  

This chapter discusses the relative grounds for refusal or invalidation of a registered trade mark, the circumstances in which a trade mark can be infringed, and defences to an action of infringement and their limits. As relative grounds and infringement overlap, these are considered together. Important additional legal issues on infringement—such as what constitutes infringing ‘use’ of a trade mark—are also considered. Key questions are the power conferred by a trade mark over the activities of others and the extent to which activities of others can prevent the registration of a trade mark. Again, the chapter reflects evolving legislation at an EU level (particularly the EU’s 2015 trade mark reform package), together with a rich body of case law.

Chapter

Cover Contemporary Intellectual Property

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 and EU levels. 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. The chapter reflects evolving legislation at an EU level (particularly the EU’s 2015 trade mark reform package), a rich base of case law, and links to the the theroetical debates seen in Chapter 13.