Issues of the Registrability and Infringement of Trademark

Issues of the Registrability and Infringement of Trademark This question would be regarding to the issues of the registrability and infringement of trademark. Trademarks are the indicators of the origin of the products and services to which it attaches[1] which could bring a great economic value. Trademark is defined as any sign that is capable of being graphically representable which is distinguishable from one good to another under in s.1(1) of Trade Marks Act(TMA) 1994[2]. Generally, a trademark could last for 10 years initially but it could be renewed every ten year if it is used in the appropriate class. Trademarks in United Kingdom (UK) is currently governed by TMA 1994 which implemented the European Union(EU) Directive 89/104/EEC.[3] There are three requirements to be fulfilled to register a trademark. Firstly, a mark must be a sign where it is very broad as it includes words, devices, images, colours, shapes, music, sounds, and smells. On the facts, the plastic seashell base would be the sign. Next, the mark must be graphically representable. However, some unusual marks such as colour, shape, smell and sound marks would be difficult to fulfil this requirement. Therefore, some guidelines have been laid down in Sieckmann v Deutsches Patent-und Markenamt[4] where it states that the sign must be clear, precise, self-contained, easily accessible, intelligible, and have a durable objective for a mark to be graphically representable. On the facts, De Rijk Kluyv intended to register the seashell shape which fall under the category of unusual mark. However, it is challenging for a 3-dimensional shape to be represented 2-dimensional graphical form. This could be seen in Swizzels Matlow Ltds 3-Dimensional Trade Mark Application[5] where the shape mark failed to be registered as there was no indication of thickness, size and more. Moreover, there were also many unsuccessful attempts for Re Coca-Cola Co[6] to register the shape of their bottle. However, the case of Smith Kline and Fre nch v Winthrop[7]allowed a registration of a 3-dimensional shape in distinctive colour combination. On the facts, unless the company could fulfil the Sieckmann citeria, the mark is not registrable. Furthermore, the mark must also be capable of distinguishing under s.3(1) of TMA 1994. In Scandecor Development AB v Scandecor Marketing AV[8], it was held that the importance of trademark is that the goods could be distinctive from others. Hence, if a mark would not be registrable if is not capable of distinguishing as this was agreed by Canon Kabushiki Kaisha v MGM[9] on the importance of distinctiveness. However, it would be too wide to look at what could be registered as trade mark. Hence, it is better to focus on what could not be registered by looking at the absolute grounds of refusal under s.3 of TMA 1994 where it sets out 10 categories of signs that could not be registered. However, there are three categories where it could be registered if a secondary meaning could be provided. They are s.3(1)(b), s.3(1)(c) and s.3(1)(d) of TMA 1994. Firstly, under s.3(1)(b) of TMA 1994, it stated that the trademarks which devoid of any distinctive character. However, there are 2 different views in this area from UK and European Court of Justice(ECJ). For example, the shape of a torch was refused to be registered as a trademark in Mag Instrument v OHIM[10]. It stated that only marks which are significantly from the norm or customs of the sector that can indicate the origin and not lack of the purpose of distinctive character. However, the opinion of UK was different in British Sugar Plc v James Robertson and Son Ltd[11] where Laddie J held that a mark would fall under s.3(1)(b) of TMA 1994 if it could not be distinguished without the public have the knowledge that it is a trademark. On the facts, the term OUR WORLD IS YOUR OYSTER! could arguably to be considered as significant from the norm and distinctive. Moreover, the term could also be distinguished without having the public knowing it as a trademark. Hence, it would not fall under s.3(1)(b) of TMA 1994. Moreover, on the facts, the slogan of OUR WORLD IS YOUR OYSTER! should not fall under the category under s.3(1)(c) where it is exclusively descriptive of the goods or services to be registrable. The general rule is that the whole of a mark must be descriptive and not merely part of the mark. However, the law in this area was uncertain. In Besnier SAs Trade Mark Application[12] the registration was refused as the term Day by Day would naturally to be used by other traders. However, in Procter Gamble Co. v OHIM[13], it was held that in appeal that baby dry is not the whole descriptive of nappies and the overall effect of the mark is important instead of the components that make it up. This was supported by Griffiths where he stated that it offers greater certainty to trademark applicants.[14] Furthermore, in Windsurfing Chiemsee v Attenberger Cases[15], the European Court of Justice(ECJ) held that geographic descriptive marks could be registered as trademark if the public associates that mark is with the owner but not the geographic place. In that case, the trademark was used 2 years before it was registered and its application was allowed by the European Court of Justice(ECJ). On the facts, the slogan had only been used just under 2 years. It could be argued that it did not meet the requirement of the length of use laid down in Windsurfings case. However, in OHIM v Wm. Wrigley Jr.Co[16], it was held that the mark Doublemint was descriptive even if it was merely partly represented the characteristics of mint flavoured or mint-scented products. It could be submitted that the courts were trying to prevent a floodgate of litigations for marks that consisted descriptive words as this was allowed in Procters case as mentioned above. This decision had departed from the general rule and held that it would be considered descriptive even though it only consists part of the mark. It also did not overrule Procters case and created a confusion in law in this area. Hence, on the facts, by following the recent decision in Wrigleys case, the company would fail in the registration of the term as a trademark as it consists a word that is descriptive to the goods themselves which is the word OYSTER where it is a type of seafood. Other than that, the mark should not consist exclusively signs or indications where it became the generic terms in general language or the specific market sector under s.3(1)(d) of TMA 1994. On the facts, it could be argued that the slogan OUR WORLD IS YOUR OYSTER! fall under the generic terms in general language as it is an edited version of the idiom the world is your oyster. Hence, it could be argued that the slogan could not be registered as a trademark. However, a mark that acquired a distinctive character through its use would be registrable. It is required that the mark must have been used and has in fact acquired a distinctive character. In Socià ©tà © des Produits Nestlà © SA v Mars UK Ltd[17], it was held that the slogan of Have a Breakà ¢Ã¢â€š ¬Ã‚ ¦Have a Kit Kat had become distinctive through its use even though the High Court on appeal held that Have a Break itself is not distinctive, the Court of Appeal held that the mark need not be distinctive individually. On the facts, unless the company could proof distinctiveness by showing that a portion of customers that could identify the goods are originate from this company because of the slogan, the slogan OUR WORLD IS YOUR OYSTER would not be registrable. Next, in determining whether there is an infringement of DUTCHY BEACH mark, s.10 of TMA 1994 would be discuss. A typical infringement would involve a sign used by a trader which is similar to another registered trademark owned by another trader which indicate the source of the goods or services. On the facts, the activity that constitutes an infringement would be affixing a sign to goods or packaging as the mark DUTCHY BEACH was used in a range of beverages by Beechy Beverages Ltd under s.10(4) of TMA 1994. There are three types of use which are regarded as infringements under s.10(1), s.10(2) and s.10(3) of TMA 1994. On the facts, the type of use would be the similar sign for dissimilar goods which has a reputation and it was used without due cause, takes unfair advantages or detriments under s.10(3) of TMA 1994.[18] The mark DUTCHY BEECH sign is similar to DUTCH BEECH mark where one sells beverages but the other one sells processed seafood products. On the facts, it is clear that the mark DUTCHY BEECH is visual, phonetic and conceptual similar with DUTCH BEACH as per Muelhens v OHIM[19]. The company would need to show that there is a likelihood of confusion but this was held to be unnecessary to do so by ECJ in Sabel BV v Puma AG, Rudolf Dassler Sport[20]. Moreover, on the facts, it is clear that the goods sold by the parties are dissimilar as per the case of Daimler Chrysler AG v Javid Alavi[21]where the classes of the goods are not the same. On the facts, the class of goods under De Rijk and Kluyvs company are class 29 and 31 while the class of goods under Beechy Beverages are class 32 and 33. Furthermore, De Rijk and Kluyv would need to prove that the trademark has a reputation. However, it is not necessary for the mark to be famous. The reputation would only need to be existed in part of the geographical area by determining the degree of knowledge of the public. It was held by the ECJ in General Motors(GM) v Yplon SA[22] that the size of the investment for the promotion of the mark must be considered when determining the degree of knowledge of public on the two marks. On the facts, they had recently invested in a new seafood platter for the supermarkets. Hence, it could be argued that there is a sufficient reputation for the mark on the public as there was an investment on the mark and it was also used on the goods which distributed to the supermarkets and restaurants locally. It could be argued that the public had a sufficient knowledge on the mark as it can be seen in supermarkets and restaurants. Then, they would need to show that there are detriments suffered or Beechy Beverages had taken unfair advantage of the repute or distinctive character of DUTCH BEACH mark. It is unnecessary for them to show detriments if there is an unfair advantage taken by Beechy Beverages. On the facts, it could be argued that Beechy Beverages had taken an unfair advantage by using a similar to the mark with repute which is DUTCH BEACH to market their goods as per LOreal v Bellure[23]. However, if Beechy Beverages could show that the use was with due cause as per Premier Brands UK v Typhoon Europe Ltd[24], there would not be an infringement. On the facts, it could be argued that there is no due cause for the use of the mark. However, Beechy Beverages would argue that the use was for comparing advertisement as per TMA 1994 in light of Directive 97/55/EC[25]. There would be an infringement if the sign was used in a course of trade under s.10(3) of TMA 1994 even if the sign did not used as a trade mark. It could be regarded to be used in a course of trade if it is used for business purposes to indicate the origin of the goods and services as per Reed Executive Plc v Reed Business Information[26]. Moreover, the case Adam Opel AG v Autec AG[27] held that any use of a similar mark including decoration purpose would amount to an infringement. On the facts, the Beechy Beverages company did not intend to register it as a trademark as there is no application made. However, according to the case stated above, it would still be an infringement as the sign was used to indicate the beverages are from Dutch as the word DUTCHY was used and it is similar to a registered mark. However, Beechy Beverages could seek for a defence under s.11(2)(b) as the use could be argued as indications for the geographical origin of its goods if there is an infringement. Beechy Beverages would argue that the use of the mark was indicating the goods are from Dutch as the name, DUTCHY BEECH consists partly of the geographical name. This defence would be accepted if the use of the mark may be expected by the public. In conclusion, the shape of the seashell base would be difficult to be registered and the slogan OUR WORLD IS YOUR OYSTER would not be able to be registered as it failed to meet requirement stated above. Moreover, De Rijk and Kluyv will success in their infringement claim but Beechy Beverages would have a defence to it as stated above. De Rijk and Kluyv could seek for injunction and damages from Beechy Beverages for the losses. [1] Davis, Jennifer, Intellectual Property Law Core Text, (4th edn, OUP 2012) 200 [2] Trade Marks Act 1994, s.1(1) [3] First Council Directive 89/104/EEC to approximate the laws of the Member States relating to trade marks [1988] [4] Sieckmann v Deutsches Patentund Markenamt (C273/00) [2003] 3 WLR 424 [5] Swizzels Matlow Ltds 3-Dimensional Trade Mark Application [1999] RPC 879 [6] Re Coca-Cola Co [1986] 2 All ER 274 [7] Smith Kline French Laboratories Ltd v Sterling-Winthrop Group Ltd [1976] RPC 511 [8] Scandecor Development AB v Scandecor Marketing AV and Others [2002] FSR 122 [9] Canon Kabushiki Kaisha v MGM [1999] ETMR 1 [10] Mag Instrument v OHIM (C-136/02) [2005] ETMR 46 [11] British Sugar Plc v James Robertson and Son Ltd [1996] RPC 281 [12] Besnier SAs Trade Mark Application [2002] RPC 60 [13] Procter Gamble Co. v OHIM (C-383/99) [2001] ECR I-6251 [14] Griffiths, Modernising Trade Mark Law and Promoting Economic Efficiency: an evaluation of the Baby-Dry judgment and its aftermath [2003] 1 IPQ 1-37 [15] Windsurfing Chiemsee v Attenberger Cases C-108/97, C-109/97 [1999] ECR I-2779 [16] OHIM v Wm. Wrigley Jr. Co. (C-191/01) [2003] ECR I-12447 [17] Socià ©tà © des Produits Nestlà © SA v Mars UK Ltd [C-353/03] [2006] FSR 2 [18] Trade Marks Act 1994, s.10(3) [19] Muelhens v OHIM [2006] ECR I-0000 [20] Sabel BV v Puma AG, Rudolf Dassler Sport [1998] RPC 199 [21] Daimler Chrysler AG v Javid Alavi (t/a Merc) [2001] RPC 42 [22] General Motors (GM) v Yplon SA (C-375/97) [1999] ECR I-5421 [23] LOreal SA v Bellure N.V. and Others [2010] EWCA Civ 535 [24] Premier Brands UK v Typhoon Europe Ltd [2000] FSR 767 [25] Directive 97/55/EC of European Parliament and of the Council of 6 October 1997 amending Directive 84/450/EEC concerning misleading advertising so as to include comparative advertising [1997] [26] Reed Executive Plc v Reed Business Information Ltd [2004] RPC 767 [27] Adam Opel AG v Autec AG C-48/05

The Color

The Color in a space gives more depth and mood to it .When perceived by a person, psychological effects and reactions are made on him or her due to the physiology of color. According to child psychologist Jean Piaget (1954), children during preoperational period (Age 2-7) communicate more with colour than language. He further explains the importance of colour in sensory & cognitive development of a child during this period. Despite of being the most deeply affected group of users, children are presently the least able to influence the design of their own environment. Not only are children seldom consulted about these matters; their needs are often forgotten when such facilities are being designed. Architects design environments which uplift the spirit and enhance sense of well being for People. They are able to modify the way a person would perceive, think about and behave in an environment. In this case Architects have a greater responsibility in shaping the built environment of the Kindergarten where the primary user is the child (Age 2  ½ -5). Since the early education methods are based on principles of child psychology, environments of early learning and the colours used for its ambiance are interrelated and play a vital role in child development. Hereby it is important to understand the type of color combinations required as spatial characteristics to fulfill the needs of Kindergarten activity and to discuss in what extent it is achieved in the Sri Lankan context.CHAPTER 1INTRODUCTION Chapter 1 gives a background of the study, which will establish its needs, objectives, scope and limitations, method and benefits. Background to the subject The manner in which we experience the sense of being in the world has been driven by a pure sensory understanding. Human contact in the world is through the sensory organs that respond through tactile, visual and audible means of the physical environment. Amongst these, colour plays a significant role in visual transfer of information from the surroundings to the perceiver. Colour is first and foremost an experience which permits human beings to enhance the total experience of the world around them. The ability to use the sense of color to an advantage in visual arts, clothing, external architecture, landscape architecture and interior architecture is one of the distinctive features of the human kind (Kuehni, 1983). Unlike the adult human who comprehends his external environment within a complex array of experiences children are mostly extroverted by nature: they not only absorb the many avenues of interest in the environment, but also experience the many emotions it evokes with candour and eagerness. As young children are instantly attracted to colour, it is recognised as one of the best mediums through which they can represent the feelings they realise. (Birren, F., 1976) Faber Birren (1988) states that Children's responses are more colour dominant than form dominant: hence its application in the spaces that children occupy requires a conscious effort. Accordingly learning spaces, such as preschools, colored appropriately, provides an unthreatening environment to the child that improves visual processing, reduces stress, and challenges brain development through visual stimulation/relationships and pattern seeking. (Simmons, 1995).Use of color in early learning spaceAlthough the use of color becomes a very sensitive and important application in preschool environments, is it is wrongly considered a surface application than an actual design element which addresses functional, aesthetical and psychological aspects, of the user. . Therefore it is important to understand that a colourful space does not necessarily provide the appropriate solutions as one would assume a colorless space would not. â€Å"Color for the sake of color accomplishes little that is constructive, just as bleak environments accomplish nothing constructive either† (Mahnke, 1996, p.180). Research has demonstrated that specific colors and patterns directly influence the health, morale, emotions, behavior, and performance of learners, depending on the individual's culture, age, gender, and developmental level, the subject being studied, and the activity being conducted. Mahnke F.H. (1996) states the use of preferred colors and color schemes in preschool environments increases the attractiveness and the sense of belongingness. Producing a fruitful and enjoyable education process†¦ Therefore Children's preference for color should be carefully regarded in the colour application of preschools. 1.2 Objective of the study The main objective of this study is to analyze the use of colour in early learning spaces and its contribution to the kindergarten concept of ‘learning through play'. While it is apparent that color in child environments are necessary what is less clear is the combinations and variations that work as stimuli in a kindergarten environment and work positively towards the learning activity of the child. Moreover, this main objective can be further detailed with the following.To analyze color preferences of preschool children, in relation to age and gender.To analyze the use of color through the identified principles and apply them to the â€Å"Learning through Play† method adopted in kindergartens.To discover how the use of colour in a pre-school environment particularly affects the kindergarten activity, the ambiance and the behavior of the child.  To identify possible colours and colour schemes with the aid of natural light conducive in creating an ideal kindergarten en vironment for â€Å"Learning through Play†.1.3 Methodology Initially the Kindergarten and early childhood education and the concept of ‘Learning through play' is studied through a literature survey referring to Local and international examples of kindergarten architecture to determine the nature or specific features of the spatial quality required. Subsequently theories and principles relevant to color for ‘Learning through play' is reviewed through literature in order to identify key principles relevant to the study: the main intent being to analyze colours and colour schemes used in kindergarten environments through which to establish the colour principles to be adhered in order to achieve the particular spatial quality required for ‘Learning through Play' Once established these factors form the basis for the examination and evaluation of case studies. The data researched to evaluate the key principles will be collected through a process of systematic observation during different times of the day and a field survey. The three case studies will be selected, investigated and analyses through derived principles which form the scheme of analysis: Accordingly, students of three kindergartens of Colombo District will be chosen: each study will contain different colour applications in specific identified areas: namely the classroom, play areas and the corridors which are then each tested against their colour preferences respectively. The results of the studies will then analyze. The research concludes with a discussion on how colour is manipulated and made meaningful in the Kindergarten concept of ‘Learning through play' with an emphasis on its effect on optimum learning. It further discusses other considerations such as location and the levels of light and glare that may be accountable for the variables observed in the study. 1.4 Scope and limitations Study is focused on identifying the â€Å"use of color† with regard to Child behavior patterns and the early learning spaces only. Further limitations of this dissertation are:The user group will be limited to the pre-operational period of childhood (2 1/2 – 5 year old children) of Nursery and kindergarten Method.Interpretation of Colour in Architecture would be confined to the Nursery and Kindergarten Method.Literature reviews on child based research and use of color on kindergarten environments.Case studies are analyzed based on accepted research, accepted theories on colour, childhood development and sensory perception without entering into a discussion on divergent views.Architectural benefits of the studyIdentify which color combinations are more suitable in a healthy learning environment for children.Create an opportunity for discussion to establish a perception on how to use color for early learning spaces.Create awareness for innovative use of color in the conte xt of early learning space design in Sri Lanka.

The Fundamentals of Best College Paper Service Revealed

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The Objective Of Transformative Learning Theory - 1066 Words

Jack Mezirow, the author of transformative learning theory, a characterizing state of the human experience is that we need to make significance of our lives (Mezirow, 1997). Transformative learning is the discovering that happens as a person structures and changes when needed. Mezirow trusts that in today s reality, individuals must figure out how to make their own particular understandings rather than listening to and following up on the convictions and clarifications of others. The objective of adult learning is to encourage understanding. The objective of transformative learning is to create autonomous thinking (Mezirow, 1997). Self-governing conduct can either have a contrary or constructive outcome on human life and a man s constant evolving Weltanschauung. It has been said that people have the most astounding knowledge known, however, our learning process is sometimes so confusing. The Bible teaches us that we are given a choice in whether to commit sin or not; the constitution of United States of America says that we have flexibility of rights. In many cases, we jump so quickly to judge and make decisions and we don’t have the whole logic of the situation at hand. Pavlov (McLeod, 2014) had his canines traditionally adapted, Thorndike (McLeod, 2007) had his felines confused for fish and Skinner (McLeod, Skinner – Operant Conditioning, 2014) had his creatures in a crate. These examination analyses uncovered learning procedures that have been extrapolated to humanShow MoreRelatedWe Start By Defining Executive Coaching Essay1388 Words   |  6 Pagesbehavioral techniques to help the executive coachee achieve a mutually defined set of goals. He defines the coaching relationship as a supportive relationship between the executive coachee and the coach. 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