Law of Intellectual Property Essay Example | Topics and Well Written Essays - 2000 words

Law of Intellectual Property - Essay ExampleThe initial step is to carry out a search in the Trade Marks Registry information base at http//www.ipo.gov.uk/tmtext or European database at http//tmview.europa.eu/tmview/welcome.html for possible prior conflicting uses of Desir or standardized words already registered. The search results are furnished in the annexure 1. Among the 37 items revealed in the search results were in addition Desir and similar sounding Desire and Dezir though under different crystallisees. Out of 45 affiliatees of items, perfume was non found. Class 1 was Chemicals. On further search for perfume, results showed that perfume fell under the Nice class 3. And the similar sounding desire has been registered in class Nice 3. The word desir has been registered under Nice class 30 which is for foodstuffs. The question is whether desir is registrable under the above circumstances. There are as many as cardinal classs in the Trade Marks Act 1994 under which a tr ade cicatrice can be refused to be registered. Relevant section for the present purpose is section 5 which states as follows. Section 5 (1) prohibits registration of a trade go down if an analogous trade mark has been already registered as goods or service. Section 5 (2) (a) prohibits registration of a trade mark if a similar trade mark has been already registered. ... Section 5 (4) prohibits registration of a trade mark if it could not be registered by any rule of law such as law of passing off. The last section 6 however provides for registration of an already registered trade mark if the proprietor of the earlier trade mark gives his consent to the registration (Legislation.gov.uk, 1994, p. 11). In view of the above provisions, trade mark in the name of Desir whitethorn be refused since the name already falls under food stuffs. A similar or identical trademark can be refused as it would cause confusion and the public are likely to fall away it for food stuff. A perfume being mistaken for foodstuff could result in disastrous consequences. level off if the owner of the existing trade mark consents, the registry may in public interest contain the applicant to make changes in the word desir in order to avoid possible future complications. If at all, the applicant gets the approval of the name, olfactory description of the perfume needs to be clarified. The description sought to be registered is spice with a touch of citrus lemon. In this connection, the case law Eden SARL v Office for Harmonisation in the Internal Market ( Trade Marks and Designs ) (OHIM) (2005) says that it can be an domineering ground for refusal if olfactory description cannot be represented graphically as per article 7 (1) (a) of canon (EC) No 40/94. The article states that a trade mark if not visually perceivable should at least be capable of being graphically represented by way of clear, precise, easily accessible, intelligible, ,durable, and egotism contained images, line, and c haracters. The olfactory description smell of ripe straw berries of the applicant in the above case not has been