The art of writing is the art of discovering what you believe.
Gustave Flaubert

Friday, 6 June 2014

Trade mark

I started thinking, in an idle moment as I drank my first (and, so far, only) coffee of the day, about the meaning of the phrase 'trade mark', or if you will the word 'trademark' (but I won't). First, I tried to remember (successfully) what the Russian for 'trade mark' is: товарный знак (tovarniy znak), which intrigued me when I first added it to my vocabulary because of the relationship between trade (товарный) and comrade (товарищ), a word which nowadays has no place in even an extensive Russian vocabulary. And now I find that it's similar (in appearance and sound, but not meaning) to твёрдый знак, the hard sign (ъ) of the Russian version of the Cyrillic alphabet (equivalent to the ultra-short vowel 'yer' in Bulgarian, it seems, which goes some way to explaining the different spellings in Russian and Bulgarian of the word for 'court', in the judicial not romantic sense). That знак can mean sign or mark is hardly surprising: its phonetic near-equivalent in English is amusing. Well, it is if you are easily amused.

Of course, the Trade Marks Act 1994 defines a trade mark with some precision. It means a particular type of sign. The 1938 Act defined it as a type of mark. A  mark is something that appears on a surface, whether something put there deliberately which you'd want to keep or something that got there by accident and you would prefer to wash away or wipe off. A sign is something wider than that, and the word has been used in religious and other contexts to denote something intangible, so the use of that generic word instead of 'mark' is consistent with the registrability under the (no longer) new law of sounds, smells, colours and other exotica. And equally знак serves as a word for a letter of the alphabet (perhaps not properly referred to as a letter) or punctuation mark, and a sign used to identify a business. I wonder whether exotic trade marks are registrable under Russian law? Given that it bears a fairly close resemblance to EU trade mark law, it seems quite likely.

Interesting as that might be (is it?), I am more interested in the first word of the phrase. In the definition of 'trade mark' in section 68 of the 1938 Act, the mark is 'used ... in relation to goods for the purpose of indicating ... a connection in the course of trade between the goods and some person having the right either as the proprietor or registered user to use the mark ...'. In the 1994 Act (and the Directive from which it is derived) a trade mark is a sign which is capable of distinguishing the goods and services of one undertaking from those of other undertakings. Interesting shift from considering the use of the mark to the function of the sign. No wonder there is such confusion under the 'new' law about 'trade mark use'.

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