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The statutory requirements
The statutory requirements
Before considering the Trade Mark in this case, it is useful to return to the statute. The requirements of a trade mark set out in s.1(1) of the 1994 Act are that it is a sign which is capable:
of being represented in the register in a manner which enables the registrar and other competent authorities and the public to determine the clear and precise subject matter of the protection afforded to the proprietor, and
of distinguishing goods or services of one undertaking from those of other undertakings.
In Libertel the CJEU (at [23]) split these into three conditions: (i) that the putative trade mark is a sign, (ii) that it is capable of graphic representation and (iii) that it is capable of distinguishing. I take them in turn.
- Heading
- Judge Hacon
- The claim
- Grounds of alleged invalidity
- The case law
- Colour per se marks
- Figurative and three-dimensional marks featuring colour
- Position marks
- The relevance of categorisation
- The statutory requirements
- A sign
- Capable of graphic representation – capable of being represented in the register
- Clarity and precision of protection
- Capacity to distinguish
- The effect of Brexit on the perception of clarity and precision
- Iceland’s arguments
- The issues
- Discussion
- Conclusions