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EU Trade Mark Directive

Editorial Staff

"Brexit" rumbles on but the juggernaut that is EU legislation will not be denied: indeed, in many cases even staunch "leavers" see benefits in much of what the EU does (which leads to the charge of "cherry picking" to which the leavers say "so what?")

The Trade Mark Directive is one such piece of legislation providing intellectual property protection across a large market and, through international recognition, across much of the world. But it's not all rosy and it shows something about how EU citizens relate to their law-makers.

One of the key changes being brought in by the new EU Trade Mark Directive allows non-graphical representations of trade marks, says the UK's Intellectual Property Office. But there is a fascinating and possibly undesirable cross-over between what can be protected as a trade mark and what may be more properly protected by artistic copyright.

The IPO says "The Directive allows new ways of depicting non-traditional marks. This is due to the removal of compulsory graphical representation for trade marks. For example, you will be able to upload audio files for sound marks, or moving images for multimedia marks. The European Union Intellectual Property Office (EUIPO), European Commission and national offices have developed a common communication on this for stakeholders."

There's a thing: we have "WIPO" for the World Intellectual Property Organisation" and we have "EUIPO" which, logically, would be pronounced "WIPO" but, presumably, someone in the EU has decided to pronounce it "you-ee-poh" or "you-poh." That clearly shows the problem.The

The fact is that sonics are ultra-variable. Things that are spelled differently sound the same; things that are spelled the same can sound different. For example, French shampo "Pantene" is pronounced "pant-en" in the UK but "pant-een" in the company's official advertising in Malaysia. Which is right?

There is great opportunity for abuse in a system that, on the face of it, offers justifiable protection. Advertising jingles are subject to copyright but are they truly trade-marks? The answer to that must be that they become such through use and familiarity. Whether they are at the outset is an entirely different question.

The Trade Mark Protection Directive is an example of why so many in the UK are concerned about the march of Europe: the problem is not always what the EU is doing, it's what the EU is doing while only a narrow section of society is watching. The Directive was signed off on on 16th December 2015 after a long gestation period. There's no secrecy, but there's no public awareness either. That means there's no widespread consultation. The media is not to blame: all attempts to get an EU-wide publication covering EU matters including laws under consideration have failed. The shape of a Khardasian's arse is far more successful at gathering readers. The information is there, but in the absence of an easy-to-follow newspaper specialising in that news, it's hard to find.

So, in relation to trade marks, the after the fact information is now drifting out, again to those who take time and put work into finding out what's going on.

Here are two documents issued by the IPO in the past few days. Hand up if you'd have known about them if it wasn't for this article?


The second of those documents shows that implementation will be inconsistent. France and Spain will accept GIF files, most will not. That is, of itself, interesting because there was (is?) a long running dispute about who owns the .gif format and whether a licence is required to produce files in that form. WHile many graphics formats are included, the common standard of .csv is not accepted anywhere, so far as this author could see. Some countries accept many formats but Ireland and Italy, for example, have a list that barely counts as minimalist. Italy, in particular, may come in for criticism because it does not accept any file types for several of the proposed new styles of trade mark.

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