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Descriptive marks cannot be registered

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The Trade Mark Act 1994 does not allow trade marks that consist of either customary language or that are descriptive of the goods / services applied for to be registered. This is because the Act seeks to prevent one owner claiming a monopoly in a combination of words that are either customary or descriptive.

However, Proctor and Gamble were NOT refused from registering the mark ‘BABY-DRY’ as a Community trade mark for nappies. Although initially, the Board of First Appeal said that BABY-DRY consisted exclusively of words which may serve, in trade, to designate the intended purpose of the goods, it was held that BABY-DRY has a ‘syntactically unusual juxtaposition’. It was made clear from this case that as regards trade marks composed of words, such as the one in issue here, descriptiveness must be determined not only in relation to each word taken separately but also in relation to the whole which they form.

The Proctor and Gamble decision was rather unusual, and it must be remembered that descriptive words cannot generally be registered as trade marks, as this would prevent other traders using terms to describe their goods. This fact was reflected in the Wrigley Company decision. Wrigley wanted to register the mark DOUBLE MINT for chewing gum. The Court of First Instance said that a sign must be refused registration If at least one of its possible meanings designates a characteristic of the goods or services concerned.

Corinne Day


About the Author

Lawdit Solicitors offer services and advice for litigation, commercial contracts, Intellectual Property and IT legal agreements. We are experts in commercial law with a heavy emphasis on Intellectual Property, Internet and e-commerce law. Lawdit is a member of the International Trademark Association, the Solicitors' Association of Higher Court Advocates and we are the appointed Solicitors to the largest webdesign association in the world, the United Kingdom Website Designers Association.



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Article Published/Sorted/Amended on Scopulus 2007-06-29 22:27:40 in Legal Articles

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